In an end-of-year surprise, the U.S. Environmental Protection Agency and the U.S. Department of the Army announced a final rule establishing a revised definition of “waters of the U.S.,” which defines which waterways will need a permit and federal oversight. The final rule, which is in pre-publication form, prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized by the Act.
The rule attempts to incorporate pre-2015 language, and while attempting to clarify the “WOTUS” definition, the test to determine which waters are regulated will be based on numerous factual situations. PSATS is currently analyzing the 500-plus page document, but it appears to be significantly broadening this definition, which could lead to additional permitting to maintain some ditches and township roads that fall under this rule.
The National Association of Towns and Townships commented on a draft version of the new rule. However, it appears that the EPA decided not to move forward with at least some of the changes. NATaT expressed concern that the vagueness of many of the terms used and asked that all ditches be excluded. Click here for more information about the new rule from the EPA.