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Story Shows Why Man-Made Ditch Shouldn't Be Regulated
 The Supreme Court is slated to consider the question of government regulation of ditches on Feb. 21 when it hears arguments on two wetlands cases — John A. Rapanos, et al. v. the United States and June Carabell, et al. v. the United States Army Corps of Engineers.
At issue is whether a ditch or storm sewer system is a “navigable water” under the Clean Water Act and thus subject to federal permitting requirements. NAHB has filed a friend of the court briefing in both cases.
To illustrate the problem, NAHB member Andrew Der, director of environmental sciences at Loiederman Soltesz Associates, a Rockville, Md.-based engineering firm, brought National Public Radio reporter Kathleen Schlach to a wooded parcel outside Germantown, Md., in January to explain why a man-made ditch dug alongside a state road should not be regulated by the federal government.
The ditch drains into a former farm field now dotted with trees and brush, and can resemble a stream after it’s been raining and even reveal a fork where it has been intersected by a deep tire track. But all that is deceiving, Der told the reporter in an NPR story that aired last month.
When it created the Clean Water Act in 1987, Congress defined ditches as point sources. Under the law, a permit is required to control sediments and other pollutants that leave a ditch and flow into navigable water. NAHB’s brief argues that a ditch is not a navigable water, and should not be regulated unless — and until — the contents reach a tributary to a navigable water. The ditches at issue in Carabell , for instance, drain into a municipal storm sewer system already permitted under the Clean Water Act to control pollutant discharges.
“NAHB has developed comprehensive familiarity with the [Clean Water Act] permitting requirements, provides compliance advice to its members, and, unfortunately, has witnessed numerous situations where federal regulators have exercised their authority beyond the act’s limits,” the NAHB brief said.
“There are an estimated 3.9 million miles of roads in the nation, and regulations require that federally funded primary roads must be ‘designed … and maintained to have adequate drainage, cross drains and ditch relief drains,’” the brief argues. Requiring permits assuming that all these ditches are navigable and subject to regulation and permitting makes no sense and would be prohibitively expensive to administer, NAHB said.
“Congress could not have intended such an absurd result."
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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