Federal Authority for Removing the Threat to U.S. Navigable Waters from Subsurface Oil Plumes1

Abstract

ABSTRACT This paper exposes a gap in current practice by the U.S. Environmental Protection Agency (EPA) and U.S. Coast Guard regarding their roles in responding to underground aquifers contaminated by oil. It further suggests a role for the federal government in providing financial, technical, and tactical assistance to state agencies for resolving these challenging environmental threats. As the two primary agencies responsible to ensure the proper cleanup of oil spills, the EPA and Coast Guard strive to maximize public benefit by applying limited federal resources where they can do the most good. In the oil spill arena, that means focusing federal resources on preventing and preparing for threats that have the most potential to cause environmental and economic damage in and around U.S. navigable waters. Yet there is one serious threat to navigable waters yet to be addressed or resolved by either the EPA or Coast Guard. That threat is in the form of hundreds of millions of gallons of oil that has, in some cases, existed for decades in underground aquifers and is continually and chronically seeping into U.S. navigable waters in both the inland and coastal zones. In most of these cases, the federal government concludes the responsibility for removal and remediation lies with state government. Based on assumptions that the Clean Water Act (CWA) does not apply to such cases, the states are denied access to federal removal funds. The author reviews the legislative history, case law and Congressional intent of the CWA. The author argues that certain underground aquifers, because of their proximity to navigable surface waters, fall within the legal definition of “navigable waters” and should therefore be the responsibility of the EPA and Coast Guard to clean under the federal removal authorities of the CWA.