Legal Insight. Business Instinct.

The Final Clean Water Rule: Irrigation Ditches

The Enviornmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have published a final rule defining the scope of waters protected under the Clean Water Act. Waters that are covered by the Clean Water Act are subject to regulation by the EPA.

So what about the ditchs carrying water on your farm? Are they covered by the Clean Water Act? Do you need a permit?

The answer is “maybe.”

While the EPA states that normal irrigation ditches are not covered by the Act, there are numerous exceptions.

For example, a stream or river that has been channelized or straightened is not exempt. A stream that has banks stabilized through the use of concrete rip-rap is not exempt. A ditch that is a relocated stream is not exempt. A ditch that drains a wetland, or intersects with a wetland is not an exempt ditch.

Generally, the following types of ditches will not be covered by the Clean Water Act:

  1. A ditch on your farm that carries ephemeral flows (i.e. water flows only at certain times of the year);
  2. Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands; and
  3. Ditches that do not flow directly into, or through another water, protected by the Clean Water Act.

In addition, the Clean Water Act excludes artificially constructed ponds and lakes on the farm, such as stock watering ponds or irrigation ponds. The Act further excludes return flows from irrigated agriculture, agricultural stormwater discharges, and maintenance of drainage ditches.

While the law is complicated, and more litigation is sure to come, as a farmer or rancher be aware that your irrigation ditches may, or may not be subject to the jurisdiction of the EPA.

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