In a recent article in StormwateReport, Michael F. Bloom, Manager of the Environmental Engineering Department at R. G. Miller Engineers, commented on a new rule proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (the “agencies”) that seeks to define the “Waters of the United States” under the Clean Water Act.
The rule has generated much controversy, especially regarding the vagueness of its definitions, which many believe leaves much open to interpretation.
Bloom’s comments, which appear in an article entitled “Adjacent Waters Should be More Clearly Defined,” outline the problems with the new definitions, saying that unlike the current definition, they are “a cascade of circular definitions that will be subject to both policy and technical interpretation”:
“The rule states that waters adjacent to jurisdictional waters are jurisdictional. However, the term adjacent is defined to mean: bordering, contiguous or neighboring. The term neighboring is then further defined to mean waters located within the riparian area or floodplain of a jurisdictional water or waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to jurisdictional waters. The terms riparian area and floodplain are also defined using the term bordering, which makes the cascade of definitions circular.”
Bloom sees these “vaguely defined terms” as being “subject to significant technical and policy interpretation [that] will create delays and challenges” for permitting of facilities adjacent to jurisdictional waters.
StormwateReport is published by the Water Environment Federation. For a full discussion on the new EPA/Corps rule, including this and other articles, go to http://stormwater.wef.org/2014/11/defining-waters-u-s-effects-stormwater/.