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Definition of 'Ditch' Is Muddy at Best

By Cindy Skrzycki
Tuesday, March 29, 2005; Page E01

Everyone is digging his own ditch in this debate.

Under the 1972 Clean Water Act, the Environmental Protection Agency and the U.S. Army Corps of Engineers have jurisdiction over whether a ditch qualifies to be protected as a wetland.

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The Corps considers whether a ditch is an isolated, non-navigable waterway open to development or a navigable U.S. waterway that deserves protection. This can include consideration of whether a ditch is a tributary, as some courts have ruled, and, thus, part of a U.S. waterway.

Seem a little confusing?

The distinctions and interpretations are left up to the Corps, which issues permits to protect wetlands from pollutants. The extent of its power has been controversial since the Supreme Court in 2001 struck down a "migratory bird rule" that gave regulators expansive authority to protect any kind of wetland used by a bird. The court said isolated, intrastate, non-navigable waters that have no connection to other waters could not be considered protected wetland in that circumstance.

At stake is the fate of thousands of miles of such isolated wetland, including the kinds of ditches that run along highways or drain farmland. Home builders and other business groups don't want ditches given more than their due, while environmentalists see ditches as an intricate part of the nation's hydrologic system that must be protected.

So the groups have been pressing regulators at EPA and the Corps of Engineers to clarify the policy and bring consistency to how these determinations are made in the field. They are also lobbying Congress to end the confusion over what constitutes an "isolated wetland."

"There is just pandemonium out there, but that is by design," said Julie Sibbing, senior program manager for wetlands policy for the National Wildlife Federation. "No one knows what is protected and what isn't."

The chief of the regulatory program for the Corps of Engineers agreed that things aren't too clear. "There is a lot of confusion about ditches right now," said Mark Sudol. "There is no guidance that says treat ditches one way or another."

Sibbing said the Corps has made "thousands and thousands of non-jurisdictional decisions" in the past few years, which means that the property in question is not covered by the protections of the Clean Water Act. Many of these designations involve bodies of water far larger than ditches.

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