The limits to federal jurisdiction over “waters of the United States” (WOTUS) have continued to develop following the Supreme Court’s landmark decision in Sackett v. Environmental Protection Agency, as federal district courts begin to vary in determining federal Clean Water Act jurisdiction over manmade ditches and canals.
A critical question, subject to extensive rulemaking and litigation over past decades, involves the extent to which manmade ditches and canals qualify as waters of the United States subject to federal regulation. In 2001, in Headwaters Inc. v. Talent Irrigation District, the Ninth Circuit Court of Appeal recognized manmade irrigation canals as WOTUS if water flowed, at least occasionally, through such features into natural streams. The United States Environmental Protection Agency (EPA) took a consistent view, defining WOTUS to include drainage ditches, even with only intermittent flow, provided that they were tributary to a water of the United States and had perceptible ordinary high water marks.
The landscape changed with the Supreme Court’s 2006 decision in Rapanos v. United States and Carabell v. United States (collectively referred to as Rapanos), in which the plurality opinion instituted the “relatively permanent” test (“relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters, plus wetlands with a “continuous surface connection” to such relatively permanent water bodies, are WOTUS) while a concurrence relied on the “significant nexus” test (WOTUS include wetlands that possess a “significant nexus” to waters that are or were navigable in fact or that could reasonably be so made). The EPA and Army Corps of Engineers issued guidance in 2008, advising that waters that satisfied either test qualified as WOTUS. The Trump and Biden Administrations subsequently adopted competing definitions of WOTUS within the confines of the Rapanos decision.
Then, in May 2023, the Supreme Court decided Sackett. The court upheld the “relatively permanent” test to the exclusion of the “significant nexus” test, finding that WOTUS include “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’ ” Some interpreted this holding as supporting the position that canals and ditches would not qualify as WOTUS because they are not ordinarily described as streams, oceans, rivers, or lakes. The EPA subsequently adopted a revised definition of WOTUS to comport with the Sackett decision, expressly excluding, in relevant part, “Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water.” The revised definition became effective in September 2023. Notably, this definition does not clearly align with Sackett, as it does not address the Supreme Court’s expression of the limitation to relatively permanent bodies of water that are ordinarily described as streams, oceans, rivers, and lakes.
Over the last year, United States district courts have begun to apply Sackett to determine whether canals and ditches qualify as WOTUS. While a consensus has begun to emerge, it has not been consistently interpreted. In the first case decided after Sackett, San Francisco Baykeeper v. City of Sunnyvale (Baykeeper), the District Court for the Northern District of California reconsidered and upheld its pre-Sackett holding that a manmade channel qualified as WOTUS. The channel at issue conveys stormwater, irrigation water runoff, and groundwater to traditional WOTUS. The court held that it qualified under Sackett because, though it flowed seasonally, “it flows continuously during certain times of the year” and “more than in direct response to precipitation.” The court also rejected the “argument that Sackett calls into question whether manmade channels with continuous seasonal flows such as this can be [WOTUS] merely because they are manmade.” It did not, however, explain why its holding is consistent with Sackett’s language limiting WOTUS to those “described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’ ” Similarly, the District Court for the Western District of Washington indicated, in Waste Action Project v. Girard Res. and Recycling, LLC, that a ditch flowing into a creek could be grounds for qualification as WOTUS, but did not decide the issue.
In contrast, other district courts have recognized or applied stricter limitations on manmade ditches. Following Sackett, the plaintiff in Ragsdale v. JLM Construction Services, Inc. (Ragsdale), which was decided in the District Court for the Western District of Texas, abandoned his claims that the defendant violated the Clean Water Act by discharging into manmade features, conceding “that the stock pond, drainage ditches, culverts, and trenches are not covered under the [Clean Water Act].” Similarly, in United States v. Sharfi (Sharfi), the District Court for the Southern District of Florida in 2024 held that seasonal drainage ditches with varying flow throughout the year were not WOTUS under Sackett, focusing on the fact that ditches are not ordinarily described as streams, oceans, rivers, or lakes, and that flow was intermittent. Notably, the Ragsdale and Sharfi courts both cited Baykeeper for the general history of the WOTUS rule leading up to Sackett, but did not explain or otherwise acknowledge the inconsistencies between their respective analyses.
The developing split among district courts warrants caution in determining whether manmade canals and ditches qualify as WOTUS under the current regulatory regime, particularly within the Northern District of California, which covers Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa and San Benito, San Francisco, San Mateo, Sunnyvale, and Santa Cruz counties. Moreover, there is a potential for litigation challenging the regulatory exemption for ditches given its inconsistency with the Sackett decision. Pursuant to the Supreme Court’s recent decision in Loper Bright Enterprises, et al. v. Raimondo, Secretary of Commerce, et al., courts must review the definition of WOTUS using their independent judgment, rather than deferring to the EPA’s interpretation of its statutory authority, increasing the chances for successful challenges to the regulation in light of Sackett’s definition of WOTUS.
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