Corps of Engineers expands wetland protection - Deal covers ditches in 9 Western states
Washington -- The Army Corps of Engineers' regional office covering Oregon and Washington has agreed to extend Clean Water Act protections to irrigation canals and drainage ditches that are connected to navigable or interstate waterways.
As part of a settlement resolving a legal challenge by an environmental group, the wetlands and streams that flow into these man-made channels also will be granted protections from being polluted or filled by developers.
The National Wildlife Federation agreed to the settlement, after announcing its intention to sue over the development of a site for a Costco store. The Seattle district office of the corps had previously agreed to allow wetlands and a ditch to be filled for a parking lot.
The settlement follows the Supreme Court's rejection Monday of developers' appeals contesting decisions by corps districts to assert Clean Water Act jurisdiction over ditches leading to larger waterways. Together, they strongly suggest the development of a legal and regulatory consensus that these waterways and the wetlands connected to them deserve protection under the law.
"We're beginning to see a pattern here," said Dave Hewitt, spokesman for the corps.
Other states in the West, including California, Arizona, Alaska, Hawaii, Montana, Idaho and Nevada, also will protect these ditches and the waters and wetlands that flow into them, Hewitt said. The corps' headquarters will look at this settlement and rulings by courts around the country as it determines a nationwide policy, he added.
"This settlement opens the door for the entire corps, hopefully, to assert jurisdiction in this broad manner," said Jim Murphy, an attorney for the Wildlife Federation.
The question of whether these ditches and canals should be protected by the Clean Water Act has been the subject of numerous legal cases since the Supreme Court ruled in 2001 that isolated, nonnavigable, intrastate waters and wetlands could not be regulated by the act merely because migratory birds visited them.
Some developers and corps regulatory officials interpreted that ruling to mean that developers would be allowed to fill in ditches and connecting wetlands and streams without getting the permits or engaging in the mitigation efforts required by the law.
To date, the corps has no nationwide policy on the regulation of such waterways.
As a result of the Seattle settlement, the agency's Northwestern division will spell out on its Web site the requirement that developers get permits and follow proper mitigation requirements when their projects affect canals and ditches connected to navigable waterways or wetlands protected by the Clean Water Act. It also agreed to post information about any decisions not to protect streams or wetlands.
Ron Marsh, the attorney for the corps, said that since fall, the agency had been making decisions to protect wetlands and waterways that were connected to navigable waters by ditches.
But Murphy, the environmental lawyer, said wetlands, streams and wildlife would be better protected now that the corps, at least in the Northwest, had made the commitment in writing.
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