District Court Vacates SPCC Definition of Navigable Waters

On March 31, 2008 the US District Court for the District of Columbia vacated a key portion of the Spill Prevention Control and Countermeasures (SPCC) rule, 40 CFR Part 112. (American Petroleum Institute v. Johnson, 2008 WL 834435.) The Court concluded that the definition of "navigable waters" that was adopted by the EPA when it finalized the rule in 2002 was not sufficiently explained in light of US Supreme Court decisions issued before (and after) the rule was finalized. EPA had adopted a broad definition of navigable waters, and the Court questioned whether EPA could justify such a broad reach of the rule in light of the Solid Waste Authority of Northern Cook County (SWANCC) and Rapanos decisions. EPA can either repropose a definition of navigable waters that will pass muster with the Court, or appeal the Court's decision.

The decision is important because SPCC plans are required for most facilities that have the potential to discharge oil to navigable waters. The new definition that the Court vacated extended the definition to almost any body of water, including ephemeral streams and isolated wetlands and lakes. SWANCC and Rapanos called that into question, although there's no bright line as to which water bodies are navigable. Navigable waters clearly include those that are navigable in fact, and adjacent wetlands, and probably other streams that flow regularly. However, the term may not include the most ephemeral streams, or isolated ponds not directly connected to flowing streams.

Until EPA appeals and gets a stay, or implements a revised definition, the previous definition for navigable waters probably applies, although it, too may not be consistent with Rapanos and SWANCC.