Clean Water Act Now Protects Some Canals and Ditches Too

The Army Corps of Engineers’ regional office covering Oregon and Washington state has agreed to extend Clean Water Act protections to irrigation canals and drainage ditches that are connected to navigable or interstate waterways.

As part of a settlement resolving a legal challenge by an environmental group, the wetlands and streams that flow into these artificial channels also will be granted protection from being polluted or filled by developers.

The National Wildlife Federation agreed to the settlement this week, after announcing its intention to sue over development of a site for a Costco store. The corps’ Seattle district office had previously agreed to allow wetlands and a ditch to be filled in for a parking lot.

The settlement follows the Supreme Court’s rejection Monday of developers’ appeals contesting decisions by corps districts to assert Clean Water Act jurisdiction over ditches leading to larger waterways.

Together, they suggest the development of a legal and regulatory consensus that these waterways and the wetlands connected to them deserve protection under the law.

“We’re beginning to see a pattern here,” said Dave Hewitt, spokesman for the corps in Washington.

Other states in the West, including California, Arizona, Alaska, Hawaii, Montana, Idaho and Nevada, also will protect these ditches and the waters and wetlands that flow into them, Hewitt said. The corps’ headquarters will look at this settlement and rulings by courts around the country as it determines a nationwide policy, he added.

“This settlement opens the door for the entire corps, hopefully, to assert jurisdiction in this broad manner,” said Jim Murphy, a lawyer for the wildlife federation.

The question of whether these ditches and canals should be protected by the Clean Water Act has been the subject of numerous legal cases since the Supreme Court ruled in 2001 that isolated, nonnavigable intrastate waters and wetlands could not be regulated by the act merely because migratory birds visited them.

Some developers and corps regulatory officials interpreted that ruling to mean that developers could fill in ditches and connecting wetlands and streams without getting the permits or engaging in the mitigation efforts required by the law.

To date, the corps has no nationwide policy on the regulation of such waterways.

As a result of the Seattle settlement, the corps’ Northwestern division will spell out on its website the requirement that developers get permits and follow proper mitigation requirements when their projects affect canals and ditches connected to navigable waterways or wetlands protected by the Clean Water Act. It also agreed to post information about any decisions not to protect streams or wetlands.

Since the 2001 Supreme Court decision, federal appeals courts in several U.S. regions have ruled that the corps should regulate ditches and canals, despite arguments to the contrary by landowners and developers. The Supreme Court, at least tacitly, upheld the appellate court rulings by refusing to hear the developers’ appeals.

In the Seattle settlement, the corps was deferring to a 2001 case, Headwater Inc. vs. Talent Irrigation District, in which the 9th Circuit Court of Appeals made a similar finding.

In that case, an Oregon environmental group sued an irrigation district for putting herbicide into its canals without obtaining a Clean Water Act permit. The court found in favor of the environmental group, ruling that the canals were “waters of the United States” because they received water from natural streams and lakes and diverted water to streams and creeks. Because of that, the court said, Clean Water Act rules and regulations applied to the canals.

The Seattle settlement concerned a development site in Vancouver, Wash., in which an hourglass-shaped wetland was bisected by an old agricultural ditch that flowed into Curtin Creek, which flowed into Salmon Creek, which eventually flowed into the Columbia River. With the corps’ approval, the ditch and the wetlands were filled in for a Costco parking lot, Murphy said.

Ron Marsh, the lawyer for the corps, said that since fall, the agency had been making decisions to protect wetlands and waterways that were connected to navigable waters by ditches.

But Murphy, the environmental lawyer, said wetlands, streams and wildlife would be better protected now that the corps, at least in the Northwest, had made the commitment in writing.

“Having this type of posting makes it much more difficult for developers to say, ‘We didn’t know,’ ” he said. “It will result in greater protection to wetlands and streams in the region.”