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The Deatons were advised that they would need to obtain a wetlands permit from the Army Corps of Engineers when they decided to dig a ditch across the low-lying middle of the property, where water would collect in the winter months and after heavy rainfalls. They were attempting to develop their land as a five-lot residential subdivision.
The property owners dug the ditch without obtaining a permit, which the court last week ordered them to fill.
The Deatons argued that the roadside ditch was not a navigable body of water and that there were no wetlands on their property.
“Congress never intended for ordinary rural roadside drainage ditches, which are commonplace along interstate highways and county roads, to be considered as ‘tributaries’ under the Clean Water Act,” said Howard.
“The environmental value of man-made ditches that are clogged with vegetation and floating leaves for just a few weeks and dry during the rest of the year should not be comparable to, and in some cases exceed, the environmental value of streams that run into the Chesapeake Bay,” he said.
Howard added that the ruling dilutes the effectiveness of the Clean Water Act in protecting the nation’s navigable waters.
(See also the related article in this issue of NBN Online, “Clean Water Act Regulation Stumbles Into a Ditch in Delaware.”)
The nation’s builders have been frustrated in their efforts to obtain clear guidance on what properties are covered under Clean Water Act regulations, he said, and “this decision will only muddy the regulatory and legal waters further.”
To read the decision in the case of United States of America v. James S. Deaton; Rebecca Deaton, click here.
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