Court rejects EPA’s ‘navigable waters’ definition

In a significant victory for the E&P industry, the US District Court for DC has vacated the EPA’s overly broad definition of “navigable waters” as contained in its July 2002 Spill Prevention, Control and Countermeasure (SPCC) rule. This decision, issued on 31 March, could potentially save the industry millions of dollars they would have otherwise spent to comply with the rule.

Under the SPCC rule issued in 2002, contractors must develop a SPCC plan, which must be specific to the rig but may be general for well locations. Contractors then need to coordinate with operators, who are responsible for locating the well site such that waters are protected from potential spills.

The EPA rule had defined “navigable waters” as not only waters that a craft may be sailed on, but 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, as well as intrastate waters, which could affect interstate or foreign commerce. That definition would have forced the industry to prepare SPCC plans for facilities that were not previously subject to the SPCC rules, or maybe not even subject to Clean Water Act jurisdiction.

The court has now agreed with the API and Marathon Oil Company that the EPA’s definition was arbitrary and capricious, and found the EPA in violation of the Administrative Procedures Act. The “navigable waters” definition has been vacated, and the issue was remanded to the EPA for further proceedings consistent with the court’s opinion. For details, contact Joe Hurt at ext 224 (joe.hurt@iadc.org) or Brian Petty at 1/202-293-0670 (brian.petty@iadc.org).