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Commercial and Recreational Boaters Faced with New Restrictions to Address Water Quality

By: Paul S. Weiland
08/05/08

In 1973, EPA promulgated a rule excluding commercial and marine vessels from requirements to obtain permits under the Clean Water Act for discharges incidental to the normal operation of such vessels. Thirty-five years later, on June 17, 2008, the United States Court of Appeals for the Ninth Circuit affirmed a district court decision holding that EPA rule is inconsistent with the Clean Water Act and therefore invalid.

While EPA proposed the issuance of two general permits to cover discharge from vessels in response to the litigation, Congress simultaneously joined the fray by passing the Clean Boating Act that excludes recreational vessels from the requirements of the Clean Water Act and establishes a multi-year process for development of management practices and performance standards by federal agencies applicable to recreational vessels. On July 31, President Bush signed the Clean Boating Act into law. The outcome of this burst of activity in all three branches of government will be business as usual for recreational boaters, but the commercial shipping industry is entering into a brave new world of NPDES permitting, compliance, and enforcement.

This saga began when, in January 1999, environmental organizations petitioned EPA seeking to repeal its regulation excluding discharges incidental to the normal operation of a vessel from the NPDES permit requirements. EPA denied the petition in September 2003. Several groups then filed a complaint in the U.S. District Court for the Northern District of California. In March 2005, the district court determined that the exclusion exceeded EPA's authority under the Clean Water Act. The court issued a final order in September 2006 ordering EPA to vacate the regulation as of September 30, 2008. In response to the district court's order, EPA published a notice of proposed permit issuance on June 17, 2008 at the same time that EPA appealed the order to U.S. Court of Appeals for the Ninth Circuit.

On July 23, 2008, the Ninth Circuit upheld the district court's holding that EPA acted outside of its statutory authority in promulgating the regulation (that is, 40 C.F.R. § 122.3(a)) excluding discharges incidental to the normal operation of a vessel from the NPDES permit requirements, and affirmed the district court's order vacating the blanket exemption as of September 30, 2008. The Ninth Circuit explained that the Clean Water Act allows the EPA to issue a permit, but does not allow EPA to entirely exempt certain categories of discharges from the permitting requirement.

In its June 17, 2008 notice of proposed permit issuance, EPA proposed the issuance of two general permits, one for owners and operators of commercial vessels and recreational vessels greater than 79 feet in length (vessel general permit (VGP)) and one for recreational vessels and uninspected passenger vessels less than 79 feet in length (recreational vessel permit (RGP)).

The VGP addresses 28 potential vessel discharge streams by establishing effluent limits, including Best Management Practices. The discharge streams covered under this permit include: ballast water, deck washdown and runoff, bilge water, graywater, and others. A vessel owner or operator is responsible for meeting the applicable effluent limits and complying with all the effluent limits for every listed discharge that the vessel produces. The VGP also requires routine self-inspection and monitoring of all areas of the vessel that the permit addresses. These self-inspections must be documented in the ship's logbook. Comprehensive annual vessel inspections are also required, and if the vessel is placed in dry dock while covered under the permit, a dry dock inspection and report must be completed.

Under the VGP, the owner or operator of a vessel that is either 300 or more gross registered tons or has the capacity to hold or discharge more than 2113 gallons of ballast water must submit a Notice of Intent to receive permit coverage. The timeframe for submission of a Notice of Intent is set forth in the permit and varies depending on whether the party seeking coverage owns or operates the vessel before or after June 30, 2009.

The RGP addresses a narrower range of discharges than the VGP. These discharges include deck washdown and runoff, graywater, engine cooling water, bilge water, and anti-fouling hull leachate. The RGP mainly includes Best Management Practices to minimize the amount of any discharge and the likelihood the discharge will enter a waterbody. The RGP does not require submission of a Notice of Intent to receive permit coverage.

For commercial vessel owners and operators, the permitting requirement will add an additional layer of regulatory compliance and oversight. The status quo will continue in the near future for recreational vessel owners and operators, but it is apparent that this group will be subject to a water quality regulatory scheme within the next several years. What is unclear at this juncture is the likely efficacy of that scheme.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes, including the Endangered Species Act. He can be reached at 949.833.7800 or pweiland@nossaman.com.

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