Anyone out there working on projects involving irrigation ditches and new COE regulations? Very interested in Idaho, Oregon and Washington experiences. Very curious about COE processing of irrigation canal/ditch modifications, maintenance, piped irrigation and interpretation of new regulation. Please post of contact me directly to share.

Wayne
wwright@geoengineers.com

Wayne,
Thanks Wayne! The forum has been quiet for a while; it is time to start a good exchange.

There are no new regulations, or even formal guidance from Washington. In fact, it has been many years since any formal regulation was published with respect to geographic jurisdictional issues. In 1993 there was the "Tulloch" rule which addressed innovative definitions of the term discharge, but it did not address geographic jurisdictional issues.

Right now, you are dealing with a regulatory program that is responding to a litany of judicial decisions and interpretations as well as its own environmental inertia. Unfortunately, the actual laws and regulations, which should support decisions with respect to jurisdiction, have become increasingly irrelevant, particularly since the landmark SWANCC decision.

Thirty years ago, many people would have been appalled to think that the U.S. Army Corps of Engineers was a land use regulation program. This would not appear to be supported by the language of the Federal laws. However, in various regions, the new interpretations of what constitutes "waters of the United States" is leading the Federal government (Corps) toward federal land use regulation.

We have been experiencing a rush of inquiries in Idaho and other locations regarding the jurisdiction over irrigation systems. My research thus far has revealed a case-by-case jurisdictional call by the COE. Not sure where NRCS weighs in with agricultural elements. There will be a forum in Boise Sept 15 to discuss and review how this issue will be addressed in that region. More to come.

Love to see this discussion take-off in the direction that Mr. Bonner attempted to head it.
But it would seem that Mr. Bonner is seeing the forest while Mr. Wright is examining trees.

What I have been seeing is a general reliance on the Tenant case, in which an irrigation ditch draining into a jurisdictional water is considered a "waters of the US". In the Tenant case (please correct my brief summary Mr. Bonner if I summarize it wrong) algacide was applied into an irrigation canal that only intermiitenlty flowed into a fish-bearing perennial stream. Unfortunately overflow occurred during the time the algacide was applied, killing a large number of fish in the stream. Arguments centered around whether or not the irrigation company had the right to discharge a chemical into the ditch without a CWA permit. The decision was that the ditch was a "water of the US" as a result of an intermittent connection to the perennial stream and that the irrigation company was liable for damages associated with the fish kill as a result of thier not first obtaining a CWA permit for the discharge. This is a brief synpopsis of the case which has had some far reaching implications on how ditches have been regulated since SWANCC.

What I have experienced in recent ditch regulation:

1. If a prior perennial stream is now being used as a ditch, regardless of how it is now operated, it is a waters of the US.

2. If a ditch makes a direct hydrological connection, even if intermittent, between a wetland or other water and a jurisdiction water, it is considered a water of the US.

3. The calls vary among individual project managers.


For example, I have a historic drainage that is now being used as an irrigation conveyance running through my property in eastern Oregon. It still maintains a fully defined bed, bank and channel bordered by wetland vegetation. Its flow is strictly controlled so that no flow enters the channel during spring and after that, flow is introduced into the channel once every 3 weeks, for a full week during the summer months. This irrgiation ditch has been determined to be jurisdictional.

Can you email me about the meeting on the 15th in Idaho? I am at lesliegecy@aol.com

In 47 states, federal Clean Water Act - Section 404 jurisdiction over ditches extends to upstream non-navigable ditches that are part of a tributary system (or hydrology connection) to navigable waters.

In the federal Fifth Circuit (Tex, La., Miss.)
CWA jurisdiction is limited to non-navigable ditches or tributaries that are immediately adjacent to an open body of traditional navigable waters. Non-navigable inland ditches and streams that are far removed from traditional navigable waters, are not subject to federal jurisdiction.

Sometimes the Corps may disagree with the courts and wrongly assert jurisdiction. This is why it is important to have a wetlands consultant or attorney who understands the law and land owners rights, and is able to effectively deal with these situations.

It seems that the last post misinterpreted the original question. That is: discrepancies in how ditches are locally regulated. If you review the last Environmental Law Institute (ELI) issue, there is an article in that issue regarding discrepancies in regulation among COE districts. It appears to me and is well cited by ELI (which is written by attorneys)that the SWANCC decision has resulted in alot of legal cases and local interpretations that are not always consistent with each other. In other words, implications of the SWANCC decision are still being sorted out in courts. I have two specific comments regarding the last post:

1. Given the inconsistencies in court decisions, it seems that we should all be discussing how these decisions affect day to day decisions on permits.
2. Professional wetland scientists sign an ethics agreement that stipulates that they will not practice beyone their capabilites. I agree that all wetland scientists working for real estate developers (really, a very small subset of the wetland scientist community) should have a very good understanding of 404 permitting and recent guidance. However, a wetland certification is not a certification to practice law and any good wetland scientist will advise you of the permitting process and any inconsistencies in it, yet will refer you to an attorney should one be necessary for legal action.

Dear Leslie Gecy,

Thank you for your insight. I understand your point about a wetland scientist practicing law.

A wetlands consultant once told me that my project contained jurisdictional wetlands and ditches. Subsequently, the Corps determined that some of the wetlands were isolated, some were adjacent, and all the ditches were jurisdictional.

A second consultant told me that none of the wetlands and ditches are jurisdictional, and this was confirmed by an attorney (and the courts).

The first consultant did not study court decisions, and deferred to the Corps on legal matters. The second consultant studied court decisions, statutes, and regulations, and knew how to make a jurisdictional call based on the law.

I have reluctantly gained far more knowledge about wetlands than I ever intended, but I am not an expert. Wetlands are decided on a case-by-case basis, and not consistently. This makes it difficult for anyone to be an expert.

I appreciate the opinions and experience that are reflected on this forum.

This message has been edited. Last edited by: Johnny Stevens,

Mr. Stevens,
You highlight an interesting point. In your case you have 2 consultants, 1 Corps District, and 1 Federal judge, (I assume it is not an appeals court with multiple judges). You have 4 different individuals or groups of individuals and you have 3 different opinions of what should be a fairly simple issue. "Does the Corps regulate a particular wetland or waterbody? Lets multiply that confusion by the total number of applicants or projects that the Corps must consider nationwide on an annual basis. The result is a fairly large-scale mass of confusion.

Now consider the decision of what to do with the wetlands once the Corps claims jurisdiction and an application is submitted to fill them. First you have to determine whether it would require an individual permit, a letter permit, a nationwide permit, or some other general permit. Will the project meet the infamous 404(b)(1) guidelines, and if so, how much compensation, if any, will be required?

Now consider the issue that a particular project may not be proposing to fill a regulated wetland, but rather is proposing to excavate or place a structure within a Section 404 wetland. Now you have to consider the various interpretations of the term discharge of dredged or fill material. This issue involves a separate and completely different set of factors, but it shares the same amount of confusion.

Now consider that not everybody has the money and resources to hire consultants with expertise in Biology, Engineering, Hydrology, Law, and Regulatory Interpretation.

IF THERE WERE A "LEMON-LAW" FOR FEDERAL LAWS AND REGULATIONS, I WOULD HAVE DEMANDED MY MONEY BACK A LONG TIME AGO WITH THE CLEAN WATER ACT.

Matt Reed, Are you listening? This discussion seems to be languishing. What do the expert consultants say about this issue in your neck of the woods? This seems to be fairly simple and straightforward in the federal Fifth Circuit, but I don't work in that circuit.

Edward Bonner: You're right. The discussion is languishing, alright. Unfortunately, that seems to be the early fate of any good policy discussion that's started, here. It's not worth the effort to make any significant contribution to such discussions. There's no bling-bling.

In April 2001, the Fifth Circuit Court of Appeals issued its ruling in the case of Rice v. Harken. The court ruled that tributaries must be adjacent to an open body of navigable water to be subject to federal jurisdiction. Non-navigable inland ditches and streams that are not adjacent to navigable waters are no longer regulated.

We decided not to proceed with a Section 404 permit because our project did not have any jurisdictional tributaries or wetlands. Then the Corps informed us that they did not agree with Rice, and told us to get a permit. The Corps said that Rice was “dicta” and incorrect. The Corps continued to assert jurisdiction over the upstream reaches of the tributary system, regardless of adjacency.

A few months later, a federal district court issued a ruling in Needham which upheld the Rice decision. Once again, the Corps said Needham was “dicta” and refused to accept this court decision. Later, the EPA/Corps Joint Memorandum was published in Jan. 03, and it recognized both Rice and Needham as relevant court decisions and instructed the Corps to consider these cases before it asserted jurisdiction or took enforcement action.

The Corps still maintains that both Rice and Needham are dicta, and they continue to defy the Fifth Circuit (and the Joint Memorandum). We told them to meet us in court and they left us alone.

This message has been edited. Last edited by: Johnny Stevens,

Mr. Stevens, there are some renegades in the Corps. What Corps district are you working in?

With the Bush administration deferring on rulemaking (at least until after November 2), there seems to be no direction coming from Washington. And the only language that some district Corps folks seem to understand is threats of court action. Keep up the good work. You gotta fight "dicta" with "dicta".

This message has been edited. Last edited by: Matt Reed,

This topic is heating up across the northwest. Idaho is experiencing a great deal of interest due to the very lage amount of irrigated land and the fact that these irrigation ditches and canals are usually connected to jurisdictional waters downstream - thus allowing the COE to define them as tributaries. In Idaho, permits may not be too difficult to obtain for projects involving piped irrigation and concrete canals. For older, overgrown ditches/canals that support heavy vegetation, mitigation will likely be needed.

The COE is holding a series of public meetings in Idaho to let the public know about this new information. We met with the COE on several projects last week and this is quite real and will be permitted on a case-by-case basis.

ed bonner. same ed bonner from philadelphia district i presume?! this is butch register. i am your old friend with southern hospitality from many years ago in training class in southeast somewhere. i am on other side since 1997 and trying to stay properly oriented. send me your e-mail address. i am on line at friend's computer. my e-mail is foxwater@ aol.com

butch register
770-403-0173

Wayne,

Keep us posted on the "shak'ns" in Idaho.

If the effluent of the ditch is a trib, what's the influent point?

Been a busy week in Idaho, Washington and Oregon. Results of Headwaters v. Talent will be far reaching and fairly broadly applied across these three states. The COE is looking at the DOWNSTREAM connection as the determining point for Clean Water Act jurisdiction either under Section 404 or 402. Yes - this means stormwater ditches and ponds that connect to waters of the US. I have checked this with the Walla Walla and Seattle District offices.

There are way too many details to post in this forum, please contact me directly for more...

Wayne

Does anyone know what the re-election of President Bush portends for wetlands law?

Is there any chance that the Bush administration will introduce new legislation or rules to reconcile the conflicts in federal Clean Water Act jurisdiction?

Should we expect more of the same?

Mr. Stevens,
You have some very fine questions. It would be my expectation that four years from now we will be able to applaud the efforts of both the white house and congress in their attempts to reconcile the conflicts with the Clean Water Act. But I doubt that we will be able to applaud their results. Whether you consider yourself a liberal or a conservative, you can not solve our environmental and regulatory problems by trying to write new federal regulations or otherwise try to control the Corps of Engineers. "You can't get there from here".

It has been almost four years since the infamous SWANCC decision by the Supreme Court. In the interim, there have been many attempts to alter the federal Section 404 program in response to that decision. As I understand it, the Corps denied the permit for an environmental reason. If this was a genuine concern, where was the State or local land use review. I recall a message in this forum several months ago that related water quality problems in the southwest with upland development. Federal regulators have tried to fix that problem by calling every stream, wetland, pipe, trench, swale, ditch, and parking lot drain a "waters of the United States". However, there has been little or no attempt that I am aware of to work with the States and/or local municipalities to effectively implement land use controls. In fact, it has been probably 20 years since the Corps' headquarters staff tried to tell the public and congress that you can destroy a wetland and degrade water quality without dredging or filling any wetland or stream. Real change won't happen at the federal level.

From an historical perspective most people might be surprised about previous developments in the federal Clean Water Act. The Federal Water Pollution Control Act Amendments of 1972 (a.k.a. Clean Water Act) was passed during a republican administration. The much criticized nationwide permit 26 of the Corps regulatory program was orginally developed during a democratic administration (1977). This same nationwide permit 26 was subsequently scaled back during a republican administration (1984). If politics continues to work (or not work) as it has in the past, the pendulum of water quality issues will continue to swing with no substantial gains or losses.

Regarding the re-election of Bush, Ed Bonner said:

"...It would be my expectation that four years from now we will be able to applaud the efforts of both the white house and congress in their attempts to reconcile the conflicts with the Clean Water Act..."

Dear Ed,

My efforts to ascertain the potential impact of the Bush administration on future environmental policy, led me to the Sierra Club website:

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The day after the election, he [Bush] was already calling his 51 percent of the vote "a broad, national victory," and Vice President Cheney was again calling it a "mandate." What can we expect from the White House with this so-called "mandate"?

* New calls to drill for oil in the Arctic National Wildlife Refuge.
* Efforts to limit the Endangered Species Act.
* Endangerment of any wildlands with trees or oil.
* Continued efforts to shred the environmental safety net.
* Continued attempts to keep the American people ignorant about the acute effects of global warming.
* More government secrecy.
* More suppression of basic scientific data.
* Attempts to deny citizens the basic right to appear in court to defend themselves and their communities against environmental assaults and dangers.

The Sierra Club will oppose as much of this as we can. Fortunately, no organization is better positioned than the Sierra Club to do just that. We are the strongest we have ever been as a grassroots organization. We have more members and more volunteers.

http://www.sierraclub.org/homepage/struggle.asp

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It appears that the Sierra Club is disappointed, but I question whether its concerns are truly justified. The Sierra Club complains about issues of environmental regulation which is a vast body of law that is complex and variable. It is difficult to know the truth in all situations and the alarmist nature of the Sierra Club undermines its credibility.

Wetlands regulation changed during the Bush administration but this was primarily the result of judicial actions. The only tangible contribution to wetlands policy by the Bush Administration is the "EPA/Corps Joint Memorandum on federal Clean Water Act jurisdiction in light of the SWANCC decision" which was published in January 2003. Beyond that, I have seen very little wetlands policy from the Bush administration, and do not expect to see much in the future.

This message has been edited. Last edited by: Johnny Stevens,