Although the agencies congratulate themselves for offering an important set of clarifications, the revised text copies terminology from previous rules and court decisions. If you parse through these subsections, you’ll see that EPA and the Corps are reaffirming the broadest definition that the courts’ allow. These include all “navigable” and interstate waters, and most natural waterways and water bodies connected to them—which the Supreme Court has said can be regulated using “Commerce Clause” powers from the US Constitution. They exclude isolated and single-state waters without sufficient “nexus” to such waters.
Self-assessment Checklist
Does my organization routinely discharge wastewaters:
- Into a natural water body?
- Into an artificial conveyance (ditch, storm sewer, etc.)?
- Into a sanitary sewer system?
Does my organization operate a facility where rainwater or snowmelt might flow:
- Into a natural water body?
- Into an artificial conveyance (ditch, storm sewer, etc.)?
Is my organization undertaking a construction or other project that disturbs a waterway, or disturbs soil or rock that might contaminate runoff into a waterway?
Has my organization evaluated the receiving waters to determine whether they qualify as “waters of the United States” subject to CWA requirements?
- Under existing regulations and permits?
- Under the definitions included in the March 2014 proposed regulations?
Where Can I Go For More information?
• Corps webpage with existing guidance
• EPA webpage for March 2014 proposal
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977). Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California’s Environmental Law Section (including past chair of its Legislative Committee).Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include: Federal Toxics Program Commentary, Environmental Auditing: FIFRA Compliance Guide, Environmental Auditing: Federal Air Quality MACT Standards for Pesticide Active Ingredient Production, and The Complete Guide to Environmental Law. This article was republished with permission from Specialty Technical Publishers.
