On November 26, 2008, EPA published a direct final rule in the
Federal Register to revise the definition of "navigable waters" of the United States, as the term applies to the SPCC rule, to comply with a recent court decision.
Effective at the time of publication, EPA restored its original 1973 definition of "navigable waters" as follows-
- All navigable waters of the United States, as defined in judicial decisions before passage of the 1972 Amendments to the CWA and tributaries of such waters,
- Interstate waters,
- Intrastate lakes, rivers, and streams that are utilized by interstate travelers for recreation or other purposes, and
- Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.
The 1973 definition replaces the much broader definition that EPA had adopted in its July 2002 revisions of the SPCC program. The 2002 SPCC amendments stretched the definition of "navigable waters" almost beyond recognition - defining it as "waters of the United States" including all waters subject to the ebb and flow of tides; prairie potholes; mudflats; impoundments of waters; and waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA, etc. This broad definition was challenged in court by the petroleum industry and vacated in March 2008 by the U.S. Court of Appeals for the DC Circuit.
See American Petroleum Institute (API) v. Johnson, 541 F. Supp. 2d 165, 173 (D.D.C. 2008).
According to the plaintiffs, EPA failed to consider the recent U.S. Supreme Court decisions that curb EPA's regulatory reach under the CWA. The Court basically agreed and stated that EPA failed to provide a reasonable explanation as to why such a far-reaching re-definition of navigable waters was needed.
EPA's November 2008 final rule restoring the original regulatory definition of navigable waters is online at
http://www.epa.gov/emergencies/content/spcc/spcc_nov08waters.htm.
When evaluating whether or not a construction site is subject to the SPCC rule, it is also worth noting that EPA's 2005
SPCC Guidance for Regional Inspectors points out that "facility" operators should consider the presence of manmade structures that may serve to convey discharged oil to "navigable waters," such as sanitary or storm water drainage systems, even if they lead to a publicly owned treatment work (POTW) prior to ultimate discharge into navigable waters. According to EPA, the presence of a treatment system such as a POTW cannot be used to determine that the facility is not reasonably expected to discharge to navigable waters or adjoining shorelines. "POTWs can fail to contain oil. They are not designed to handle oil discharges and are on occasion forced to bypass to receiving waterbodies during extreme weather events or when upsets occur in the treatment system."
EPA's guidance lists the following factors to consider in determining whether there is a reasonable expectation of discharge:
- Whether a past discharge of oil reached a navigable water or adjoining shoreline, which indicates that another could be reasonably expected;
- Whether the facility is adjacent to navigable waters and a discharge to the navigable waters could be reasonably expected;
- Whether on-site conduits, such as sewer lines, storm sewers, and certain underground features (e.g., power or cable lines, or groundwater) could facilitate the transport of discharged oil off-site to navigable waters;
- Whether a unique geological or geographic feature would facilitate the transport of discharged oil off-site to navigable waters;
- Whether the facility is near a watercourse and intervening natural drainage;
- Whether precipitation runoff could transport oil into navigable waters; and
- The quantity and nature of oil stored.
EPA's SPCC Guidance for Regional Inspectors
is online at http://www.epa.gov/emergencies/docs/oil/spcc/guidance/TOC.pdf.