On June 13, 2003, the Fourth Circuit Court of Appeals issued a startling decision in United States v. Deaton, an enforcement case. The Court found that a roadside drainage ditch was subject to federal jurisdiction under the Clean Water Act. The defendant had dug a ditch through a wetland on its property, and the property itself drained to a roadside drainage ditch. The Army Corps of Engineers and Deaton, the defendant, had disagreed on how much water flows though the ditch and how consistent the flow was, but they agreed on the ditch’s winding course, with water from the roadside ditch eventually discharging twenty-five miles downstream to Chesapeake Bay via a series of tributaries. The Court found that the Corps was entitled to deference in its interpretation of the Clean Water Act’s applicability to navigable waters as extending to roadside drainage ditches far removed from a navigable water, where the flow of water could be traced to a navigable water. This decision is now binding precedent in Maryland, Virginia, West Virginia, North Carolina and South Carolina.
The decision is extremely disturbing for many reasons. The Fourth Circuit was one of the first to evidence concern about regulation of isolated wetlands, and it invalidated the migratory bird rule in the Fourth Circuit several years before the Supreme Court took up the issue in its landmark decision in SWANCC. The Court ignored the import of the Supreme Court’s landmark decision in the SWANCC case with respect to the need for a nexus to navigability. The Corps has not generally taken jurisdiction over drainage ditches, unless those ditches are themselves wetlands that meet the three technical criteria. The Corps had even announced that policy in the Federal Register. The decision ignores the practical effects of stormwater management and drainage, and shows a disregard for the traditional regulation of these areas by the states. And the decision diminishes the incentive for the Corps and EPA to engage in reasoned decision-making concerning the scope of the Clean Water Act following SWANCC, which they had announced an intention to do. Instead, it provides encouragement to continue the current policy of making policy through the courts, which results in piecemeal decision-making and does not provide certainty for the regulated community. All in all, the decision is a serious disappointment.
The Court appears to have left open the question of whether wetlands adjacent to a non-navigable water are themselves jurisdictional, an argument not pressed by the defendants. The decision is not clear in this regard, as the activity in question concerned the wetlands abutting the ditch, and not the ditch itself. The Fourth Circuit is itself in a position to clarify the decision, as the Court will be addressing wetlands adjacent to a ditch in a case currently pending on its docket, United States v. Newdunn. But judging from the length to which the Fourth Circuit went to justify its decision in Deaton (it bent over backwards to do so) the prospects for a different outcome in the pending case do not look good.
Because there have been conflicting views on the impact of the SWANCC decision, an appeal to the Supreme Court would be constructive and might be accepted. A prior ruling in this case concerned whether sidecasting is regulated by the Clean Water Act, and excavation is also an issue in which the Supreme Court has indicated an interest, evidenced by its acceptance of the Borden Ranch case last term. The Court did not get an opportunity to decide the Borden Ranch case because Justice Kennedy recused himself, and the resulting 4-4 split decision operated to automatically affirm the lower court decision approving regulation of excavation-type activities. Notwithstanding that the Fourth Circuit is viewed as an arbiter of the Supreme Court, the decision may be vulnerable on appeal. The Court’s reasoning with respect to the Commerce Clause, the constitutional basis on which the Corps has asserted jurisdiction, is legally unconvincing – the precedent cited by the Court did not fully support it, as no case has extended federal jurisdiction so far.
Copyright 2003 Gardner Carton & Douglas
This article is not intended as legal advice, which may often turn on specific facts. Readers should seek specific legal advice before acting with regard to the subjects mentioned here.