Apparently the Philadelphia Corps Division has created its own rule establishing ditches as waters of the US (see attachment). I wonder if this action goes beyond the Corps' argument in Carabel. I may be wrong, but in the case of Carabel isn't it the Corps' position that the ditch is not a Water of the US, but that the ditch creates a hydrologic connection between an otherwise isolated wetland and a navigable water? I need to go back and re-read the Supreme Court Hearing Transcript.

I am curious to know what the forum readers think of the new Philadelphia ditch rule. Has anyone read it? I have heard about this new rule in the recent past, but now I'd like to get my hands on a copy. Is it in the Federal Register? Anyone have a copy? If so, can you post it here somehow. Thanks.

http://www.nahb.org/news details.aspx?newsID=2208

I was wondering, is there some kind of special ditch that is perhaps unique to the Philadelphia region that is the subject of concern to the NAHB, or does the Corps in Philadelphia just have a special approach to everyday ditches?

Matt asked:

"...I was wondering, is there some kind of special ditch that is perhaps unique to the Philadelphia region.."

Dear Matt,

I wondering the same thing so I asked around.

Apparently, the Corps used to make a jurisdictional distinction between ditches in uplands and ditches in wetlands.

Since SWANCC, there has been a general trend by the Corps to expand its definition of jurisdiction over ditches. Accordingly, the distinction between upland and wetland ditches is blurred when ditches were defined as "hydrology connections."

The Philadelphia District seems to be codifying the Corps' expansive re-definition of ditch jurisdiction, and according to NAHB, this was done outside of the official rule making process.

NAHB argues that in the Clean Water Act, ditches are specifically defined as "point sources" and should not regulated as "navigable waters" or hydrology connections.

Let's hope that the Supreme Court resolves this issue.

Johnny: When you mention the NAHB's argument, are you referring to their argument in Rapanos/Carabel, or have you seen the NAHB complaint against the Philadelphia Ditch Rule?

Jeff,

It is my understanding that NAHB argues that ditches should be regulated as point sources and not navigable waters, in both the Philadelphia Ditch lawsuit, and in its comments on Rapanos/Carabelle.

If ditches were regulated as point sources, instead of navigable waters, what would be different?

Ditches are sometimes considered point sources under various storm water rules. This has led to confusion over whether storm water in a ditch should be classified as a "point" or "non-point" source for regulatory purposes.

Before storm water enters a ditch it is clearly non-point source. What are the implications of legally classifying storm water in ditch as a point source discharge, instead of navigable waters? Did it make sense to begin with?

If ditches become regulated as point sources then it would likely require more regulatory guidance, staff, and funding to reconcile the transition from navigable waters.

Army Corps To Reexamine Philadelphia Ditch Rule Normal View

Home Builders Hail Victory for Housing Affordability


August 4, 2006 - The U.S. Army Corps of Engineers has agreed to stop enforcing the so-called Philadelphia Ditch Rule, in which the Corps had asserted its jurisdiction to regulate common roadside ditches as “navigable waters” under the Clean Water Act.

The National Association of Home Builders (NAHB), which filed suit to halt the practice, had argued that the Corps had issued the ditch rule without following appropriate administrative procedures for rulemaking.

“We have been fighting for a clear, consistent definition of ‘navigable waters’ for years, mainly because costs and delays associated with compliance have such a significant effect on housing affordability and often result in environmentally unsound land-use decisions,” said NAHB President David Pressly, a home builder in Statesville, N.C. “It sounds like the federal government is listening, and finally acting, on our repeated requests. This is a big win for housing affordability.”

Today, at the Corps’ request, the U.S. District Court for the District of Columbia entered an order sending the rule back to the agency for reconsideration.

According to a Department of Housing and Urban Development study on factors affecting housing affordability, regulatory costs, which include the cost of complying with rules regarding wetlands, can top $40,000 per home.

Today’s order is the result of the NAHB suit against the Corps that the association filed in March after the federal agency’s Philadelphia regional office told its agents to treat all upland ditches as navigable waters of the United States, triggering their regulation under the federal Clean Water Act. The Corps will stop enforcing the ditch rule and await a more comprehensive policy that can be uniformly applied all over the country.

This is the first significant agency action regarding the enforcement of the Clean Water Act since the Supreme Court’s decision in the Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers cases in June. That decision underscored the confusion that continues to swirl over "navigable waters," and justices urged the Corps to come up with a clearer, less broad definition that provides sensible, uniform federal guidance.

“While the majority of justices in the Rapanos and Carabell cases indicated that they want to rein in the Corps’ broad interpretation of its regulatory jurisdiction, it’s likely that any new guidance or rule will address more than just navigable lakes and bays, rivers and the wetlands next to them,” Pressly said. “And that’s exactly how it should be. We need to protect these precious resources.

“The problem is that the Corps didn’t know where to stop, but now there’s a clear line drawn in the sand. With today’s order, a foundation has been laid for sensible, environmentally sound, and consistent guidelines – not just in the Philadelphia region, but all over the country,” Pressly said.

The corps now has language in a Programmatic General Permit specifically saying ditches are not regulated.
http://www.nae.usace.army.mil/reg/NH%20PGP%20-%20Final%...%20for%20Website.pdf

General Permit No: NAE-2007-461
Applicant: General Public in New Hampshire
Effective Date: June 28, 2007
Expiration Date: June 28, 2012

V. GENERAL PERMIT CONDITIONS:
General Conditions Related to Minimizing Environmental Impacts:
21. Waterway/Wetland Work and Crossings
(d) The requirements to comply with the Guidelines in order to proceed as a Minimum Impact Project as stated in (c) above do not apply to the following:
ii. Constructed drainage systems designed primarily for the conveyance of storm water or irrigation. Also, non-tidal drainage and irrigation ditches excavated on dry land are not Federally-regulated.

You are talking about a permit process in New Hampshire. That has nothing to do with the Philadelphia district. Go back even farther. There is a statement in the Corps' regulations from November 13, 1986 .........." we generally do not consider the following waters to be Waters of the United States................ (a) non-tidal drainage ditches and irrigation ditches excavated on dry land". That statement sounds very similar to the recent statement for the New Hampshire general permit. If it is so simple and universally accepted why has there been so much confusion over the past several years. What you have to remember is that there are a lot of the following words in most if not all of the federal regulations and permit documents: however, furthermore, generally, discretionary, and case-by-case. And if you throw in a matrix document prepared by some lawyer in the Justice Department, the saga of a federal land use program is perpetuated.