• Mark Ryan

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?

Corps ditch exemption memo 2020
Download PDF • 370KB

If you would like to receive email notifications of new blogposts, go to the signup button above, leave your email, and you'll be alerted to updates.

43 views0 comments

Recent Posts

See All

Quick Presidential Action on WOTUS

As expect, the ship is turning directions under the new Biden administration. In one of his first executive orders entitled "Executive Order on Protecting Public Health and the Environment and Restori

New Fifth Circuit Decision

The case below follows a long line of 505(b)/309(g)(6) cases addressing whether the state law is similar enough to the CWA to provide a bar to federal court prosecution. The courts have frequently rea

Dave Ross Interview in E&E

All of us who work in the CWA know the name Dave Ross. He headed up the EPA Office of Water under the Trump administration. Regardless of what you think of the work he did, he was by any measure produ

© 2016 by Ryan & Kuehler PLLC.

  • Facebook Basic Black
  • LinkedIn Basic Black
  • Twitter Basic Black