As part of the federal spill prevention, control, and countermeasure (SPCC) rule, EPA has restored its traditional definition of navigable waters. The definition formally replaces the very broad definition the Agency had inserted into its July 2002 revisions of the SPCC program. In March 2008, that definition was vacated by the U.S. Court of Appeals for the DC Circuit.
In December 1973, EPA issued its original SPCC requirements, which indicated that navigable waters were:
- 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.
In the 2002 revisions, EPA stretched this definition almost beyond recognition to include 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.
The definition was challenged in court by the petroleum industry. According to the plaintiffs, EPA failed to consider the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), which shortened 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 final rule restoring the previous regulatory definition of navigable waters is available here.
[Source: Environmental Manager's Compliance Advisor. Subscribe today!]