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July 16, 2008

Battle of the Bilge: EPA Issues Draft NPDES Permits for Incidental Boat Discharges

By Alyssa Moir

If you think EPA is conflicted about regulating greenhouse gases, consider the Agency’s recent pronouncements on waste discharges from marine vessels. On the one hand, EPA is appealing a 2006 district court decision requiring the Agency to begin regulating ballast water discharges from vessels under the Clean Water Act (“CWA”). Northwest Environmental Advocates v. EPA. [1] But since the appeals court has yet to rule, and in order to meet an impending deadline set by the district court, EPA has issued a draft rule requiring thousands of vessels to obtain permits for their incidental discharges under the National Pollutant Discharge (“NPDES”) permit system.

Background

Incidental discharges from boats include ballast water, grey water, bilge water, deck runoff, and black water. Among these discharges, environmentalists and regulators are most concerned about ballast water, which is water that is taken on or released by cargo vessels to compensate for changes in a ship’s weight as cargo is loaded or unloaded, and as fuel and supplies are consumed. When a vessel takes in ballast water, it also takes in aquatic organisms that may then be carried from one port to another along the vessel’s route. When the water is released, non-native or invasive species may be introduced into new environments and cause environmental harm. Eurasian water milfoil and zebra mussels are two examples of non-indigenous species that have been transported to the Great Lakes via ballast water.[2] In the Pacific Northwest, fish and wildlife agencies are also concerned about the introduction of invasive aquatic species such as smooth cordgrass, Oyster drill, European green crabs, non-native tunicates, and zebra mussels, all passengers in ballast water.[3]

Currently, ballast water discharges are addressed by Coast Guard regulations promulgated under the Non-Indigenous Aquatic Nuisance Prevention and Control Act of 1990 (“NANPCA”), 16 U.S.C. 4701 et seq.,[4] and the National Invasive Species Act of 1996 (“NISA”), Pub. L. No. 104-332, 110 Stat. 4073 (1996).[5]

Ballast water discharges have historically been exempt from CWA permitting requirements. EPA regulations specifically exclude incidental discharges, including ballast water, from boats from the permitting requirements of the NPDES program. Under the CWA, an NPDES permit is required for discharges of any “pollutant” from a “point source” into navigable waters of the United States.[6] The term “point source” includes a “vessel or floating craft.”[7] The term “pollutant” includes “biological materials,” but specifically excludes “any sewage from vessels.”[8] EPA has long relied on its own regulation, 40 C.F.R. 122.3(a), to also exclude: “effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel,” from NPDES permitting program requirements.[9]

EPA’s interpretation of the CWA was challenged by a group of environmental plaintiffs and eventually, several intervening Midwest states, in Northwest Environmental Advocates v. EPA. There, the Court disagreed with EPA’s interpretation by vacating 40 C.F.R. § 122.3(a).[10] Recognizing the “national significance of the issues” and the “dramatic effect this Court’s ruling may have on the shipping industry and the agencies that issue NPDES permits,” the Court gave the EPA two years – or until September 30, 2008 – to implement new regulations for incidental vessel discharges.[11] Importantly, the Court’s remedy applies to all vessel discharges that had been exempted by EPA’s regulation, including ballast water, gray water, bilge water, deck runoff, and blackwater.[12]

While EPA recognizes the need to address and control invasive aquatic species, it has also articulated “significant practical and policy reasons not to re-open the longstanding CWA regulatory exclusion.”[13] The agency reasons that “there are a number of ongoing activities within the Federal government related to control of invasive species in ballast water, many of which are likely to be more effective and efficient than the use of NPDES permits under the CWA, and also emphasizes that “nothing in the CWA prevents states from independently regulating ballast water discharges under State law, should they choose to do so, pursuant to CWA section 510. Nevertheless, the agency has stated that it “cannot simply await the outcome” of its appeal to the Ninth Circuit, and has moved forward with issuing the draft NPDES permit.

EPA’s Draft Permit

The NPDES program utilizes two basic types of permits – individual and general. General permits can be written to cover point sources having common elements, such as similar operations or waste discharges.[14] Given the vast number of vessels that may require NPDES coverage, the EPA has issued two draft general permits – the Vessel General Permit (“VGP”) and the Recreational General Permit (“RGP”). Both permits cover vessel discharges in the waters of the United States, regardless of whether a state is otherwise authorized to implement the NPDES permit program within its jurisdiction.[15]

The RGP would apply to all recreational vessels and “un-inspected” passenger vessels that are less than 79 feet from bow to stern.[16] This includes motorboats, sailboats, recreational fishing boats, personal watercraft, rowboats, canoes, and kayaks, as well as sailboats-for-hire, charter-fishing vessels engaging in hook-and-line fishing, and personal watercraft for hire.[17] Under the draft rule, owners and operators of these vessels would not be required to submit Notices of Intent (“NOI”) to obtain coverage under this permit.[18] Instead, as long the owner or operator has met the eligibility requirements found in the permit and discharges in accordance with the applicable terms of the permit, the eligible discharges are deemed authorized on the date that the finalizes the permit.[19] Authorized discharges include graywater, engine cooling water, and bilge water. IUnauthorized discharges include garbage or trash, discharges of spent or used oil, discharges not subject to the former NPDES permit exclusions, and discharges currently or previously covered by another NPDES permit.[20] Vessel owners and operators would also be required to follow Best Management Practices (“BMPs”) as set out in the RGP, including fuel and trash management, requirements for detergents used in the production of graywater, engine and oil control, and deck and hull cleaning to prevent the transport of visible living organisms.[21]

The VGP applies to owners and operators of commercial and recreational vessels that are greater than or equal to 79 feet from bow to stern, and addresses 28 potential vessel discharge streams by establishing effluent limits and BMPs to control the discharge of waste streams and what they contain. Owners and operators of vessels that are greater than 300 tons or have the capacity to hold or discharge more than 2113 gallons of ballast water would be required to submit an NOI form to receive permit coverage.[22] Vessels that are subject to the VGP but with less capacity are not required to submit an NOI. Instead, they would be automatically authorized by the proposed VGP to discharge according to the permit requirements, again, once the agency finalizes the permit. Eligible discharges range from ballast water to propeller hydraulic fluid to reverse osmosis brine.[23] Discharges not covered by the permit include garbage or trash, sewage, used or spent oil, and discharges of industrial materials such as dry-cleaning operations, medical waste or photo processing effluent.[24]

In order to remain covered by the VGP permit, vessel owners and operators must document routine self-inspection and monitoring of all areas of the vessel that the permit addresses, as well as comprehensive annual vessel inspections. Finally, there are eight specific types of vessels, including cruise ships, large ferries, barges, oil or petroleum tankers, and rescue boats, that must comply with additional requirements designed to address features unique to these vessels, such as parking decks on ferries and overnight accommodations on cruise ships.[25]

Critics Question the Use of NPDES Permits to Regulate Incidental Discharges

Opponents of the draft rule argue that current state efforts and the previously described Coast Guard regulations are sufficient to protect coastal and inland waters. In addition, several states have promulgated regulations pertaining to ballast water control and/or incidental discharges. The most stringent of these laws was enacted by Michigan, which requires all oceangoing vessels operating in Michigan waters to seek a permit from that state’s Department of Environmental Quality in order to discharge ballast water subject to certain restrictions.[26] Similar permitting programs are on the horizon for several Great Lakes states.[27]

Opponents also point to federal legislation in the works, such as the pending Clean Boating Act of 2008[28] and the Ballast Water Treatment Act of 2007, as more appropriate approaches to regulating incidental discharges.[29] Many stakeholders in state agencies and the maritime industry contend that the NPDES program is too complex, intended for point discharges from fixed facilities rather than mobile sources, and will create conflicts between state and federal laws.[30]

The EPA itself acknowledges that the “NPDES program does not currently provide an appropriate framework for managing ballast water and other discharges incidental to the normal operation of vessels … discharges from such highly mobile sources would be more effectively and efficiently managed through the development of national, environmentally sound, uniform discharge standards” in lieu of NPDES permits.[31] In its brief to the Ninth Circuit, the EPA reiterated its arguments that Congress has not questioned the incidental discharge exemption in over thirty years, and has repeatedly set up discharge regulating schemes outside of the CWA, demonstrating its acceptance of EPA’s longstanding interpretation.[32] In addition, in arguing that the two-year rule-making deadline imposed by the district court was unreasonable, EPA highlighted that in establishing the storm water NPDES program, under which approximately 500,000 storm water point sources are authorized, the agency took almost ten years to issue a final general permit. Pointing to the “potentially millions of highly mobile vessels,” EPA asks the Ninth Circuit to vacate the district court’s two-year deadline as unreasonable.[33]

With the Ninth Circuit appeal pending, resistance from the implementing agency, strong opposition from the commercial and recreational maritime community, and proposed legislation countering the district court decision, it remains to be seen whether the draft NPDES rule regulating incidental discharges from boats will hold water.

For more information on he draft rules, please contact Alyssa Moir or any other member of Marten Law Group’s Environmental Permitting practice group.

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