Property Owners Violated Clean Water Act by Digging a Ditch

By KENT S. GERMAN
Capital News Service
April 18, 2000

WASHINGTON - A federal appeals court has ruled that Wicomico County resident James Deaton violated the Clean Water Act after digging a drainage ditch on his property.

A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that sidecasting, or piling excavated soil on either side of the ditch, violated the act's provisions against the discharge of pollutants into the "waters of the United States."

Ethan Shenkman, the Justice Department attorney who argued the government's case, said Deaton's property was subject to regulation because the ditch eventually flowed into the Wicomico River and the area had been designated by the government a "non-tidal wetlands."

"Its part of the tributary system," Shenkman said. "The excavated material is a pollutant."

But Deaton's attorney said that while the 12-acre property near Salisbury has a high water table, it does not qualify as a wetland and itis too far from any river for the soil to be of any danger.

"The Wicomico is eight miles away," said Raymond Smethurst, the attorney. "We contend that none of the area is a wetland."

Among other regulations, the 1972 Clean Water Act requires that the Army Corps of Engineers must issue permits before any excavation or construction can begin on specified lands that could affect U.S.waterways.

While the act does not mention sidecasting specifically, it does state that permits are needed for "construction or maintenance of farm or stockponds or irrigation ditches, or the maintenance of drainage ditches."

"Sidecasting qualifies as a discharge," Shenkman said. "Activity in these wetlands needs a permit."

But Smethurst said extending the government's jurisdiction to includea drainage ditch was taking things too far.

"Congress never intended the act to have such a far reach," he said. "Sidecasting should not be a regulated activity."

According to the April 7 court opinion, Deaton started the ditch in 1990 on advice from the U.S. Department of Agriculture Soil Conservation Service, in order to drain water so he could develop the property.

The federal government sued after it learned Deaton had started digging without a permit. Deaton stopped the work, but the case proceeded to U.S. District Court in Baltimore, anyway.

There, his attorneys argued that the sidecasting did not require a permit because the government had no jurisdiction over his property.

The District Court ruled in September 1997 that any wetlands on the Deaton property would be subject to the Clean Water Act and that sidecasting was a pollutant.

But it reversed itself in June 1998, after the appeals court split on whether sidecasting was illegal in an unrelated case. The district court predicted that the appeals court would find that sidecasting was legal asa result of that case, and it awarded summary judgment for the Deatons.

But the appeals court took the other tack, ruling this month that sidecasting is a form of pollution and is therefore subject to government regulation.

It overturned the lower court decision, without ruling on whether the Deatons' property is a protected wetland or whether it is subject to regulation under the Clean Water Act. The appellate court sent the case back to the district court to consider those issues.

The Environmental Defense Fund and the Chesapeake Bay Foundation,which filed briefs on the government's behalf, both hailed the circuit court's decision.

"If the decision had gone the other way, you could have done anything in a wetland," said Timothy Searchinger, an Environmental Defense Fund spokesman. "That would eliminate wetland protection."