Tuesday, March 10, 2009

SPCC Rule - 40 CFR 112 - Redefining "Navigable Waters"

In November 2008, the Environmental Protection Agency (EPA) promulgated a final rule to amend a Clean Water Act (CWA) Section 311 regulation to change the definition of the term “navigable waters''. This amendment affects compliance with the SPCC Rule, 40 CFR 112.

As background, the SPCC rule was originally promulgated on December 11, 1973. The 1973 SPCC rule defined “navigable waters'' (see below). In 2002, EPA amended the SPCC rule including a revision to the regulatory definition of “navigable waters”.

In 2008, a US District Court ruled that the Agency's promulgation of the revised definition of "navigable waters'' in the July 2002 SPCC rule violated the Administrative Procedure Act. The court vacated the 2002 definition and specifically restored the 1973 SPCC regulatory definition:

Navigable waters of the United States means "navigable waters'' as defined in section 502(7) of the FWPCA, and includes:
(1) All navigable waters of the United States, as defined in judicial decisions prior to passage of the 1972 Amendments to the FWPCA (Pub. L. 92-500), and tributaries of such waters;
(2) Interstate waters;
(3) Intrastate lakes, rivers, and streams which are utilized by interstate travelers for recreational or other purposes; and
(4) Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.

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