Environmental Corner: News Around the Nation

Seventh Circuit Issues a Ruling on the Clean Water Act And Ditches

Ninth Circuit Upholds Corps's Decision Not to Initiate Consultation Under the ESA

Seventh Circuit: "A Stream Can Be A Tributary; Why Not A Ditch." 

In United States v. Gerke Excavating, Inc., ___ F.3d ___, 2005 WL 1433882 (7th Cir. Wis. 2005), a property owner dumped stumps, roots and sand into a wetland by using a bulldozer.  The wetlands in question were next to a ditch that runs into a non-navigable creek that runs into a non-navigable river that in turn runs into a navigable river. The U.S. Army Corps of Engineers charged the property owner with Clean Water Action violations because the owner added pollutants to a water of the United States from a point source without first obtaining a permit.  The defendant conceded that he added pollutants from a point source, but argued that the wetlands in question were not “waters of the United States.”  

The Corps regulations provide that “wetlands” “adjacent” to “tributaries” are “waters of the United States.”  The Corps, therefore, argued that the wetlands in question were next to the ditch and that the ditch is a tributary.  Therefore, according to the Corps the wetlands in question fall within the definition of “waters of the United States.”  

The U.S. Court of Appeals for the Seventh Circuit agreed with the Corps.  It provided:

"A stream can be a tributary; why not a ditch. A ditch can carry as much water as a stream, or more; many streams are tiny."

In addition, however, the property owner argued that even if a ditch falls with in the Corps jurisdiction according to its regulation, it violates the Commerce Clause for the federal government to regulate a ditch.  The Seventh Circuit disagreed.  It explained that Congress can regulate “an entire class of acts if the class affects commerce, even if no individual act has a perceptible effect. . . . Congress may forbid the pollution of navigable waters even if the pollution has no effect on navigability.”  Therefore, the court concluded that no part of the “Constitution forbids interpreting the Clean Water Act to cover any wetlands that are connected to navigable waters.”  

Thus, in the Seventh Circuit states a ditch is a “navigable water” under the Clean Water Act.  This puts these states in line with the Fourth, Sixth and Ninth Circuit states.  In contrast, in the Fifth Circuit states a ditch is not a “navigable water” under the Clean Water Act unless it has a “significant nexus” to a water body that is actually navigable.  

Ninth Circuit Upholds "No Effect" Determination Regarding Pygmy Owls

On July 12, 2005, in a 2-1 decision, a panel of the 9th Circuit Court of Appeals upheld a determination by the U.S. Army Corps of Engineers (Corps) that two development projects in Arizona requiring Section 404 permits would have "no effect" on any Endangered Species Act (ESA) listed species or critical habitat.  Defenders of Wildlife v. Flowers, No. 03-16884 (9th Cir., July 12, 2005).

Defenders of Wildlife and the Center for Biological Diversity filed suit challenging the Corps’s decision not to consult with the Fish and Wildlife Service (FWS) under Section & of the ESA and on the Corps’s “no effect” determinations on the Arizona cactus ferrunginous pygmy-owl (pygmy-owl) regarding the two development projects.  Normally, the issuance of Section 404 permits would trigger the requirement for the Corps to "consult" with FWS over the projects' respective impacts on endangered species (here, the pygmy-owls).  However, the Corps did not pursue formal consultation because it determined that that the projects would have "no effect" on any ESA-listed species or critical habitat.  Significantly, letters from FWS's field office did encourage consultation.
 
In 2001, NAHB won a suit before the Arizona federal district court that vacated the critical habitat designation for Pygmy-owls.  Then, in August 2003, the 9th Circuit ruled that the owl never should have been listed in the first place.  The 2003 decision held that FWS violated its own policies when it listed the Arizona population of pygmy-owls as a "distinct population segment" (DPS) under the ESA.  While the 9th Circuit was the first appeals court to ever rule that a particular listing was substantively flawed and lacked a scientific record basis, it did not go the next step to actually de-list the Owl.
 
In a lengthy footnote, the 2-judge majority discussed NAHB's prior litigation regarding the DPS listing and critical habitat, and seemed genuinely concerned that the Owls remained listed despite its 2003 ruling that found the listing substantively flawed.  Specifically, the court noted “[t]he upshot is that a listing rule that this court found to be arbitrary and capricious on August 19, 2003 is still alive in Arizona in April 2005 with no foreseeable termination in sight.”  (Slip op. at 8110 n.2.)  The 2003 decision, remarked the court, "puts in doubt the status of the Arizona pygmy-owl as a significant part of its taxon and would seem to require its delisting . . . . We could rely [on the prior 2003 decision] in affirming the judgment in this case."  (Slip op. at 8109-8110.)  But the court went further, and agreed that the Corps's "no effect" determination was appropriate because "no pygmy-owls had been found to live in either project area" and no critical habitat for the species was in effect because NAHB had vacated it in prior litigation.  (Slip op. at 8110.)
 
The dissenting judge on the 3-judge panel, Judge Ferguson, disagreed and would have required Section 7 consultation because the residential projects could have an effect on potential habitat and Owls – which do, in fact, remain listed. 

For a copy of the full opinion, please click on the link below:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E4EB29A8125C33F78825703B0082C82A/$file/0316884.pdf?openelement [ return to top ]