On November 26, 2008, EPA published a direct final rule in the Federal Register to revise the definition of "navigable waters" of the United States, as the term applies to the SPCC rule, to comply with a recent court decision.
Effective at the time of publication, EPA restored its original 1973 definition of "navigable waters" as follows-
- All navigable waters of the United States, as defined in judicial decisions before passage of the 1972 Amendments to the CWA and tributaries of such waters,
- Interstate waters,
- Intrastate lakes, rivers, and streams that are utilized by interstate travelers for recreation or other purposes, and
- Intrastate lakes, rivers, and streams from which fish or shellfish are taken and sold in interstate commerce.
- Whether a past discharge of oil reached a navigable water or adjoining shoreline, which indicates that another could be reasonably expected;
- Whether the facility is adjacent to navigable waters and a discharge to the navigable waters could be reasonably expected;
- Whether on-site conduits, such as sewer lines, storm sewers, and certain underground features (e.g., power or cable lines, or groundwater) could facilitate the transport of discharged oil off-site to navigable waters;
- Whether a unique geological or geographic feature would facilitate the transport of discharged oil off-site to navigable waters;
- Whether the facility is near a watercourse and intervening natural drainage;
- Whether precipitation runoff could transport oil into navigable waters; and
- The quantity and nature of oil stored.