A federal court ruling that the Clean Water Act applies to ballast water, bilge water and other routine vessel discharges has led to action, by the U.S. Environmental Protection Agency, that will require permits for thousands of commercial vessels.
Eleventh-hour legislation passed by Congress and signed by President Bush provides a reprieve for millions of other vessels, including fishing boats and recreational craft that would have been subject to the new guidelines.
As a result of the decision by the U.S. District Court for the Northern District of California, the EPA will require commercial vessels 79 feet or longer to have a discharge permit as of Sept. 30, 2008. The agency, which filed an appeal that was rejected in federal court on July 23, estimates that 42,000 U.S.-flagged vessels and 8,000 foreign-flagged vessels will be affected.
While the focus of the lawsuit that led to the 2006 ruling was on stopping invasive species that travel in the ballast water of oceangoing ships, the new vessel general permit (VGP) applies to all discharges incidental to the normal operation of these vessels in U.S. waters. The permit incorporates the U.S. Coast Guard’s mandatory ballast water standards and establishes guidelines for more than 25 additional types of discharge, including deck runoff, bilge water and gray water. There are also requirements for self-inspections, monitoring, record keeping and corrective actions.
“Larger vessels will need to file a notice of intent (NOI) and will have to keep records to show that they have maintained compliance,” said Barry Hartman, an attorney specializing in maritime and environmental issues for the law firm K&L Gates LLP. “Maintenance, training practices and record keeping are going to be 95 percent of it. I don’t think it is going to require much changing of equipment.”
The NOI requirement will pertain to owners or operators of vessels that are 300 gross registered tons or more, or which have the capacity to carry 8 cubic meters of ballast water. The NOI will have to be filed six to nine months after Sept. 30, the date the discharge exclusion expires.
The EPA’s response to the initial court ruling was a proposal covering all non-military vessels under a two-tier permit system: the VGP and the recreational general permit (RGP). Two pieces of legislation enacted at the end of July — the Clean Boating Act of 2008 (S 2766) and Senate bill 3298 — granted an exemption, at least temporarily, for operators of smaller commercial vessels and all recreational vessels.
Senate bill 3298 provides a two-year permit exemption for vessels less than 79 feet and for all fishing boats. During this period, the EPA will study whether incidental discharges from these vessels — including laundry, shower and galley-sink wastes — pose a risk to human health or the environment. If so, the agency will determine guidelines for reducing, eliminating or mitigating the discharges.
The Clean Boating Act excludes recreational vessels from the permit process for at least one year for a similar EPA assessment. The EPA’s proposed RGP, which would have included canoes, kayaks and other personal watercraft, had been denounced by the National Marine Manufacturers Association (NMMA) and other industry groups.
“The recreational marine industry and boaters throughout the U.S. can now rest easy and go boating without a federal or state permit, heavy penalties and absurd legal jeopardy,” said Scott Gudes, vice president of government relations for the NMMA.
There was no such reprieve for operators of large commercial vessels, however, who face a new set of guidelines and procedures.
Glen Nekvasil, vice president of corporate communications for the Lake Carriers’ Association, a trade group representing U.S.-flagged shippers on the Great Lakes, criticized the EPA’s approach and said the CWA was never intended to cover mobile sources of effluent.
“It’s one thing for a power plant that sits there and the discharges are the same every day,” he said. “This (permit) is not an appropriate vehicle, and we have told the EPA that repeatedly.”
A provision that allows states to add stricter discharge rules will create a “compliance nightmare,” Nekvasil said.
“You would find yourself in a situation where in Indiana you have to do this, in Ohio, you have to do that and in Michigan, you have to do something else,” he said. “This process has to be completely rethought. We cannot have a patchwork of state regulations.”
Enforcement of the permit requirements will be the responsibility of the EPA and any authorized agent, including the Coast Guard and appropriate state agencies. While self-regulation will play a large role in ensuring compliance, the EPA and its representatives will have the authority to inspect vessels and equipment, check logbooks and sample or monitor any substances or parameters at any location. Violators would be required to take corrective action; failure to do so would open the door to civil or criminal penalties.
“There is a provision in the Clean Water Act to allow any citizen to sue over someone discharging illegally, so folks can call the EPA and the EPA can take action,” Hartman said. “But don’t assume that the U.S. Coast Guard is going to enforce it. The Coast Guard doesn’t enforce the Clean Water Act. It only enforces [its] regulations that overlap with the EPA’s.”
A spokesman for the EPA said implementation and enforcement issues were still being worked out and that the agency has tried to be consistent with Coast Guard regulations. He said that although mariners will not be required to have a copy of the VGP on board, they will be expected to comply with all of the rules listed in the document.
The impetus for the court action dates back to shortly after the implementation of the CWA of 1972, when the EPA added a regulation to exclude certain discharges from the National Pollutant Discharge Elimination System (NPDES) permit process. The exclusion applied to “any discharge of sewage from vessels; effluent from properly functioning marine engines; laundry, shower and galley sink wastes; or any other discharge incidental to the normal operation of a vessel.”
In 1999, concerned parties led by Northwest Environmental Advocates petitioned the agency to request that certain discharges — chief among them ballast water — be subject to NPDES permit requirements under the CWA. The EPA denied the petition in 2003, stating “actions by the federal government under other statutes specific to ballast water were likely to be more effective and efficient in addressing the concerns raised in the petition than reliance on NPDES permits.” The groups then filed suit.
In 2005, the U.S. District Court for the Northern District of California ruled that the regulation, excluding the discharges, exceeded the EPA’s authority. In 2006, the court issued an order revoking the exclusion as of Sept. 30, 2008. The agency’s appeal of the ruling was rejected in July by the Ninth Circuit of the U.S. Court of Appeals.
Hartman said that while the cost of compliance will not be an issue for most mariners — “median costs per firm range from $4 to $795 in the low-end assumptions and from $53 to $1,598 in the high-end assumptions,” according to the EPA — the permit process has generated uncertainty across the industry.
“There is a whole new set of issues that never existed before and that the industry never had to deal with before,” Hartman said.
The 96-page VGP is available online at www.epa.gov/npdes/vessels. There is no charge for the permit.