Applying the Clean Water Act Section 404 Ditch Maintenance Exemption in Hampton Virginia

Under the Clean Water Act, Section 404(f)(1), certain specified activities that involve dredge and fill are exempt from permitting requirements. One of these specified exempt activities is “Maintenance (but not construction) of drainage ditches”. A “drainage ditch” is defined in 2020 joint Environmental Protection Agency Army Corps of Engineers memo as “a ditch where increasing drainage of a particular land area or infrastructure is at least part of the designed purpose. This includes the following ditch use categories: agricultural, transportation (e.g., roadside, railroad), mosquito abatement, and stormwater management.” The drainage ditch exemption is subject to the “recapture provision”, which if applicable, would bring the activity into the scope of 404 regulation. The recapture provision addresses whether the planned activity would result in a “change of use” and would impair the flow or reach of waters of the United States.

The City of Hampton has drainage ditches and a Ditch Maintenance Plan that describes the maintenance activities that are routinely conducted in the ditches, including vegetation and debris removal, mowing, re-grading, dredging, and bank stabilization. The City has prepared documentation to support the applicability of the drainage ditch exemption for planned maintenance activities.