The inclusion of manmade ditches and canals under WOTUS has been a longstanding debate and was governed by the subjective "significant nexus” test. The Supreme Court’s decision in Sackett v. EPA disregarded that test and narrowed WOTUS by restricting it to relatively permanent water bodies and wetlands. The Supreme Court however, failed to define “relatively permanent water bodies and wetlands.” This has created a split in the lower courts around the country as federal courts now differ on the Clean Water Act’s (CWA) jurisdiction over manmade ditches and canals.
Over the past year, U.S. District Courts have begun applying Sackett to determine whether canals and ditches qualify as WOTUS, specifically as it relates to the definition of “relatively permanent body of water” and what constitutes a “continuous surface connection.” In San Francisco Baykeeper v. City of Sunnyvale, the Northern District of California upheld its pre-Sackett ruling that a manmade channel conveying stormwater, irrigation runoff, and groundwater qualified as jurisdictional. The Court reasoned that the channel, though seasonal, flows continuously at certain times and not solely in response to precipitation. It rejected arguments that Sackett precludes manmade channels from WOTUS jurisdiction. Similarly, in Waste Action Project v. Girard Res. and Recycling, LLC, the Western District of Washington ruled that a ditch flowing into a creek might qualify as WOTUS, but ultimately did not need to decide the issue.
Alternatively, some district courts have imposed stricter limits on manmade ditches under Sackett. In Ragsdale v. JLM Construction Services, Inc., the Western District of Texas dismissed Ragsdale’s CWA claims, concluding that the wetlands on his property did not qualify as a “relatively permanent, standing, or continuously flowing body of water” like a stream or river. Instead, the property featured manmade ditches. In United States v. Sharfi, the Southern District of Florida ruled that seasonal drainage ditches with intermittent flow were not WOTUS, citing the lack of a continuous surface connection to the wetland and their distinction from streams, oceans, rivers, or lakes.
The growing division among federal courts calls for caution in assessing whether manmade canals and ditches qualify as WOTUS under current regulations. Courts are independently interpreting WOTUS, and with the incoming Trump administration, further changes to WOTUS implementation in the post-Sackett era are inevitable.
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