Are Wet Weather Conveyances Waters of the United States?
By Richard C. Young and William L. Penny INTRODUCTION A wet weather conveyance is not subject to federal jurisdiction under the Clean Water Act. Even though the United States Army Corps of Engineers (“USACE”) does not recognize that term, the way Tennessee has chosen to regulate these watercourses, by definition, takes them out of federal jurisdiction. As a legal matter the USACE conducts jurisdictional determinations based upon the latest guidance de jure. The USACE could even conclude that a wet weather conveyance technically meets the mercurial definition of “navigable waters.” However, Clean Water Act jurisdiction does not apply where a state has taken action to remove the so-called “uses” from the water quality standards. Accordingly, when the Water Quality Control Board adopted the wet weather conveyance rule, which was approved by the United States Environmental Protection Agency (“EPA”) in 1986, it removed any established uses for such waters in Tennessee. The distinction betwe
