District Court Rejects Broad SPCC "Navigable Waters" Definition

May 16, 2008
Client Alert Newsletter May 2008

On March 31, 2008, the United States District Court for the District of Columbia sustained challenges by the American Petroleum Institute and Marathon Oil Company under the Administrative Procedure Act to the broad definition of "navigable waters" included by the U.S. Environmental Protection Agency ("EPA") in the 2002 amendments to the regulations governing Spill Prevention, Control and Countermeasure ("SPCC") plans codified at 40 C.F.R. Part 112. In American Petroleum Institute v. Johnson, the court found that EPA had failed to explain the basis for its definition of navigable waters in sufficient detail to allow the court to determine whether EPA had engaged in rational decision-making. In addition, the court found that EPA had failed to address the disconnection between its broad definition of navigable waters and the 2001 decision by the U.S. Supreme Court interpreting the jurisdictional limits of the Clean Water Act in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers. The court therefore vacated the definition and remanded the matter to EPA for further consideration. The decision represents another setback for EPA in attempting to delineate the outer boundaries of its CWA jurisdiction.

The effect of the decision is to restore, for the time being, the more narrow definition of navigable waters included in the original 1973 SPCC regulations. Because only facilities that, due to their locations, could reasonably be expected to discharge oil to "navigable waters" in amounts that might be harmful to those waters are potentially required to have SPCC plans, fewer facilities may now be subject to the SPCC regulations. The actual impact of the court's decision to particular facilities will involve fact-specific inquiries into the nature of water bodies in proximity to the facilities and the potential for oil in the event of a release to reach those water bodies that qualify as "navigable waters" under the more narrow 1973 definition.