New Corps/EPA Memo on Ditch Exemptions
The Corps and EPA recently released the joint memo on interpreting the 404(f)1)(C) ditch exemption. Given that most ditches are no longer WOTUS under the new WOTUS rule, the old guidance clearly needed updating. The ditch maintenance exemption is widely used and often involves more than de minimum impacts to waters, so it's an important exemption.
This memorandum replaces Corps REGL 07-02. I have not had a chance to do a side-by-side comparison, but one quick difference jumped out. In the flow chart at the end of the new memorandum, it says if the activity doesn't qualify for one of the ditch exemptions, "Consider whether the activity may meet the terms of another § 404(f) exemption." That's not in the 2007 REGL, and emphasizes this administration's bias toward finding activities exempt from the CWA.
I haven't had a chance to look into this yet, but I wonder if this new memorandum counts as guidance, and if so, does it comply with the new rule on issuing guidance?
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