Impacts of the EPA’s new Waters of the United States (WOTUS) on the SPCC rule
The Requirement for an SPCC
The Environmental Protection Agency (EPA) requires certain types of facilities to prepare and implement Spill Prevention, Control, and Countermeasure (SPCC) Plans to prevent oil from reaching navigable waters of the United States or adjoining shorelines. Without consideration for mechanical intervention, facilities with no potential impact to navigable waters are not required to implement a plan. For this reason, the definition of ‘navigable waters’ can be a very contested topic.
EPA Definition of WOTUS
On December 11, 2018, the Environmental Protection Agency and the U.S. Department of the Army signed a proposed rule revising the definition of “waters of the United States” to clarify the scope of waters federally regulated under the Clean Water Act. Public comment on the rule closes on April 19, 2019, and will include public comments from the open forum held in Kansas City, KS February 27 and 28th. Anyone wishing to provide a copy can submit it through the following link: https://www.regulations.gov/comment?D=EPA-HQ-OW-2018-0149-0003.
“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler.
The new definition of “navigable waters” is less stringent than the 2015 definition, but still encompasses a similar body of U.S. waters. Most significantly, the new definition specifies those items that are ‘not waters of the U.S.” such as features that only contain water during or in response to rainfall. Specifically, the EPA has outlined 11 exclusions:
- Groundwater, including groundwater drained through subsurface drainage systems
- Ephemeral surface features
- Diffuse stormwater run-off (such as directional sheet flow over upland)
- All ditches except those identified above
- Prior converted cropland, which has been excluded since 1993 and will remain excluded
- Artificially irrigated areas
- Artificial lakes and ponds constructed in upland not otherwise covered as jurisdictional (e.g., water storage reservoirs, farm, and stock watering ponds, settling basins, and clearing ponds)
- Pits excavated in upland for the purpose of obtaining fill, sand, or gravel.
- Water-filled depressions created in upland incidental to mining or construction activity
- Stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off
- Waste treatment systems, which have been excluded since 1979 and will remain excluded
The biggest change impacting manufacturing and distribution is the clarification of the definition of tributaries and ditches.
The proposed rule defines tributary as “a river, stream or similar naturally occurring surface water that contributes perennial or intermittent flow to a traditional navigable body of water or territorial sea in a typical year either directly or indirectly through other jurisdictional waters (incl. tributaries, impoundments, and adjacent wetlands)”. As proposed, tributaries do not include surface features that flow only in direct response to precipitation, including ephemeral features such as: groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems
To clear up significant ambiguity and provide “clarity and predictability,” the EPA is adding language to define a ditch that falls under the rule: “an artificial channel used to convey water” and:
- Satisfies the conditions identified in paragraph (a)(1) of the proposal;
- Is constructed in a tributary as defined in paragraph (c)(11); or
- Is constructed in an adjacent wetland as defined in paragraph (c)(1).
Impact on Existing SPCC Plans
The new WOTUS definition will certainly impact facilities across the U.S. with the revised definitions, requiring facilities to develop plans where they may have argued against it in the past. For most locations with existing plans, there is likely to be minimal impact on existing activities. Facilities with existing SPCC plans will need to continue to complete inspections and maintain active plans.
Questions about SPCC Plans and how U.S. Compliance can help your company navigate the EPA’s newly proposed rules? Contact me.