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Western States Water Council Legal Committee Washington, DC March 27, 2006 . attention since June of last year on ditches, and exemptions of ditches. To give you a little bit of back ground, we had ajoint meeting last June between the Corps and EP A. During that meeting an EP A attorney said there should be almost no use of exemptions. The Corps did not disagree with the description of the exemptions. Mark Limbaugh encouraged us to work on this issue as well on the exemption language. There is one last issue that the groups will meet at the principals' level. What does exemption mean? We've taken the language out of the regs and put it into the law and expanded it tomakeitmore useful. On irrigation ditches, the exemption language talks about construction and maintenance. If you line a canal or whatever, it will be exempt under the 404. There is a big issue with Sacramento levees. They will be exempt. Drainage ditches are another issue. Out West, they're different than in the East. The maintenance of the ditches would be covered. One other area is agricultural drains, and creating a wetlands area. There is language in there about that. Who makes the call on an exemption? The Corps or you all? You should make the first call. You won't see that in the regs. If something is clearly exempt, then keep records. Should come out in April. After SWANCC, the Corps had to stick to the things that were done prior to the court decision. Given the uncertainty, they want to use the exemptions to the Clean Water Act. It is a way to give the states clearance without worrying about jurisdiction. There is a potential problem with the Corps coming in later and calling the jurisdictional issue. Obviously, nothing is going to happen until the two Supreme Court cases are resolved, Karabell and . Rapanos. I'm not going into detail about those, but you're not going to see anything come out until those are resolved. We're looking for some clarity from those decisions. A new joint rule with EPA on mitigation is coming out tomorrow in the Federal Register and there will be a 60-day comment period. There will be three major factors to the rule: (I) moving towards a watershed approach for mitigation; (2) time lines will be put on getting mitigation banks on line for mitigation and; (3) all mitigation will essentially be done by the same standards. I would recommend that all of you take a look at the rule and comment. Another regulatory guidance letter will be coming out on mitigation, probably within two weeks. Nationwide permits expire in March of next year. They expire by statute and they cannot be expended. Formal rulemaking process will be done. These will be in the Federal Register probably in April or May. Questions: Rod Kuharich. You want to move to watershed approach for mitigation. Do you see this as providing flexibility? Mark Sudol: Yes. It will give you more flexibility. Norm Semanko: We appreciate headquarters coming in and working with the BOR to make sure . things make sense. 6