South-Western Legal Studies in Business

Manmade Ditch Connecting Land to Waterway Creates Wetland Jurisdiction
Description Appeals court held that the state of Virginia had jurisdiction over control of property for purposes of compliance with wetlands regulations. The property, bordered by a highway, was connected to a navigable waterway more than two miles away by manmade ditches that carried water only intermittently. Under federal law, this constitutes a wetland, and Virginia law is the same as federal law for that purpose.
Topic Environmental Law
Key Words Clean Water Act; Wetlands; Navigable Waters; Jurisdiction
C A S E   S U M M A R Y
Facts Newdunn bought 43 acres of land in Newport News, Virginia in the 1970s. Most of the property was wetlands. After a highway was built, the land became isolated, though connected to a waterway by manmade ditches that run next to or under the highway. Newdunn contended that the land was no longer a wetland subject to Corps of Engineer jurisdiction, and without a permit, he began filling the land for construction. The Corps sued Newdunn in federal court. The State Water Control Board sued Newdunn in state court under Virginia environmental law. That matter was moved to federal court. The court held for Newdunn, ruling that there was no wetland, so the Corps had no jurisdiction, and that the state had no jurisdiction because state law regarding wetlands has the same meaning as federal law. The Corps and the state appealed.
Decision

Reversed. A manmade ditch under the highway is a tributary that leads to a navigable waterway, so the land is part of the navigable waters of the U.S. subject to wetlands regulations. The fact that the water flow is intermittent and through manmade passages for over two miles until it reaches a river does not affect its wetland status. The state court has jurisdiction over this matter. The state uses the same definition as the federal government as to what constitutes a wetland. Since this is a wetland, and the matter raised was under state law, it goes to state court.

Citation Treacy v. Newdunn Associates, LLP, 344 F.3d 407 (4th Cir., 2003)

Back to Environmental Law Listings

©1997-2003  SW Legal Studies in Business. All Rights Reserved.