Regulation of “ditches” under the Clean Water Act (CWA) has long been a controversial aspect of civil construction development do to perceived regulatory overreach. Industry has struggled to predict if a ditch is going to be ruled jurisdictional under the CWA Waters of the US (WOTUS) language. The recent 2022 Sackett v. EPA Supreme Court decision, provided generally that the CWA’s jurisdiction is limited with respect to “adjacent wetlands” not maintaining a continuous surface connection to bodies that are determined WOTUS.
The Environmental Protection Agency (EPA) published a revised final WOTUS rule in 2023 that many critics say fell short of implementing the Sackett decision. ARTBA submitted comments on April 23, 2025 stating the need for “regulatory clarity, categorical exemptions for roadside ditches and ephemeral features, and protection of previously issued jurisdictional determinations to support timely and efficient project delivery.” (ARTBA)
In light of the Sackett decision and industry feedback, the EPA & US Army Corp. of Engineers (USACE), published a WOTUS rule revision on November 20 for review and comment. The revision includes several references to ditches including an exclusion for roadside ditches “constructed or excavated in dry land”, not part of a natural tributary system, and do not fall under the ordinary meaning of “waters”. The language states that agencies bear the burden of proof in determining that a ditch is not excluded. See the notice for more details and comment submittal instructions.
Contact ICI Director of Government Affairs Dan Osborn (317) 634-7547 with WOTUS questions.
