The U.S. Army Corps of Engineers does not have jurisdiction over ditches that are dug on dry land and has no valid reason to regulate them, NAHB told a three-judge panel of the Court of Appeals for the District of Columbia on Nov. 8.

The oral arguments are part of NAHB’s challenge to an Army Corps of Engineers’ permit dealing with discharges into upland ditches. 

In its brief, NAHB argued that the Corps does not have jurisdiction over ditches, and even if it does, it failed to adequately explain why in this permit. 

The government argued that NAHB did not have standing to challenge the permit and that the permit does not regulate ditches, but the Clean Water Act does.

In response to the government’s assertion that NAHB could not challenge this permit, Judge A. Raymond Randolf asked a hypothetical question that pushed the bounds of reason: He asked whether a person could bring a challenge if the Corps created a permit that required anyone who drove over a bridge that crossed a river to obtain a special Corps driver's license. 

After trying to avoid the hypothetical question, the government’s attorney answered that no one could bring a challenge.

“This pretty much illustrates the absurdity of the Corps’ position in this case,” said Tom Ward, NAHB’s vice president for legal advocacy.

In another exchange, Judge Karen LeCraft Henderson asked the government’s attorney, “How can you possibly keep saying the Clean Water Act answers [the question whether the Corps has jurisdiction over ditches]?”

She said she read nothing in the act that clearly gives the government authority over ditches. 

NAHB’s attorney also met with some resistance.

Judge Stephen F. Williams said he did not understand how NAHB’s members could be harmed by a permit, because the permit makes it easier for them to fill certain ditches because it is a “safe harbor” under the act.

NAHB’s attorney explained that with this permit, the Corps is “trying to create another safe harbor over something they have no jurisdiction over.”

The court is expected to reach a decision by next spring.

For more information, email Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.