printreg,June,2004SPCC Applicability

printreg, June, 2004
SPCC Applicability

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From: Gary Jones "Re: SPCC Applicability"(
Date: Wed, 2 Jun 2004 10:15:28
This is an area where there is a bit of controversy, especially as it relates to wetlands. There was a recent 2001 Supreme Court Ruling (SWANCC Vs Army Corps) regarding the definition of an isolated wetland and if it was a water of the "United States" and this has caused a rash of other court cases, which has not yet been settled. In the SWANCC case, the court ruled that the Migratory Bird Rule could not be used as a basis by the Army Corps to assert federal jurisdiction over isolated, intrastate waters. EPA proposed a regulation based on SWANCC in 2003 that would have expanded the SWANCC decision to other waterways, but withdrew it due to heavy criticism. EPA is currently using an internal policy to make case-by-case decisions.

For additional information, see the July 17, 2002 issue of the Federal Register. On July 17, 2002 (67 FR 47042), EPA published final amendments to the SPCC rule and on Page 47075, the following information was included in the preamble:

Navigable Waters

We proposed a revision of the definition of ``navigable waters'' in 1991. The rationale was to have the part 112 definition track the definition of ``navigable waters'' in 40 CFR part 110, which deals with the discharge of oil.

Clarification of the meaning of navigable waters, maps. A number of commenters asked for a clarification of the definition of navigable waters because of the difficulty of determining which waters fall within the definition. Some asked for EPA maps to aid in this determination.

Navigability, legal authority. Other commenters believed that the definition related to navigability. Some thought the definition was legally unsupportable because it is so broad. One commenter suggested that the term be limited to unobstructed streams that free flow at least fourteen consecutive days per year.

Wetlands. Another commenter believed that the definition should not apply to wetlands because SPCC protections are not needed when wetlands are regulated under a permit program.

Response to comments. Clarification of the meaning of navigable waters, maps. In this definition, we clarify what we mean by navigable waters by describing the characteristics of navigable waters and by listing examples of navigable waters. We also note in the definition that certain waste treatment systems are not navigable waters.

We are unable to provide a map to identify all navigable waters because not all such waters have been identified on a map. However, the rule provides guidelines as to where such waters may be found.

Navigability, legal authority. Navigable waters are not only waters on which a craft may be sailed. Navigable waters include all waters with a past, present, or possible future use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide.

Navigable waters also include intrastate waters which could affect interstate or foreign commerce. The case law supports a broad definition of navigable waters, such as the one published today, and that definition does not necessarily depend on navigability in fact.

Wetlands. We disagree that SPCC regulation of wetlands is redundant. The definition includes wetlands, as defined in Sec. 112.2 and discussed below, because wetlands are waters of the United States.

Different programs serve different purposes, and merely because an activity or function is regulated for one purpose (for example, NPDES) does not mean that regulation for another purpose is redundant. The purpose of a permit discharge system is waste treatment and management. The purpose of the SPCC rule is oil pollution prevention.

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