EPA’s Vessel General Permits: Background and Issues
Congressional research reportOct 12, 2016
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EPA’s Vessel General Permits:
Background and Issues
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Specialist in Resources and Environmental Policy
October 12, 2016
Congressional Research Service
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EPA’s Vessel General Permits: Background and Issues
Summary
In November 2011 the Environmental Protection Agency (EPA) proposed two Clean Water Act
(CWA) permits to regulate certain types of vessel discharges into U.S. waters. The proposed
permits would replace a single Vessel General Permit (VGP) issued in 2008 that was due to
expire in December 2013. As proposed, the permits would apply to approximately 71,000 large
domestic and foreign vessels and perhaps as many as 138,000 small vessels. This universe of
regulated entities is diverse as well as large, consisting of tankers, freighters, barges, cruise ships
and other passenger vessels, and commercial fishing vessels. Their discharges are similarly
diverse, including among other pollutants aquatic nuisance species (ANS), nutrients, pathogens,
oil and grease, metals, and toxic chemical compounds that can have a broad array of effects on
aquatic species and human health, many of which can be harmful.
EPA proposed two permits, one for large vessels to replace the 2008 VGP, and one for smaller
vessels covered by a congressionally enacted temporary moratorium. Both were proposed well in
advance of the VGP’s expiration to provide ample time for the regulated community to prepare
for new requirements. On March 28, 2013, EPA issued a final version of the VGP for large
vessels. It took effect December 19, 2013. The permit for smaller vessels, the sVGP, was issued
on September 10, 2014, and was scheduled to take effect on December 19, 2014. However, in
December 2014, Congress passed legislation (S. 2444/P.L. 113-281) extending until December
18, 2017, the date when small vessels will need a CWA permit.
The CWA requires that all regulated discharges must meet effluent limitations representing
applicable levels of technology-based control. The 2013 VGP largely retains the current permit’s
approach of relying on best management practices to control most discharges, because EPA
concluded that it is infeasible to develop numeric effluent limits for most controlled discharges.
However, the new VGP includes for the first time numeric ballast water discharge limits, which
are consistent with standards in a 2012 Coast Guard rule and an international convention.
The 2013 VGP raises two key issues. One concerns inclusion of specific numeric ballast water
discharge limits in the permit. At issue had been whether EPA would propose more stringent
numeric limits, as some environmental groups have favored and a few states have already
adopted. A second issue concerns the role of states in regulating vessel discharges.
Environmental groups and Canadian shippers challenged the 2013 permit in federal court. In
October 2015, the court supported the environmentalists’ challenge, ruling that the permit
violated the CWA because it did not require the use of best available technology to control
discharges of invasive species from ships’ ballast water. The court remanded the permit to EPA,
but did not vacate it; the permit remains in effect until EPA issues a new permit.
Congressional interest in this topic has been evident for some time. In 2008 Congress enacted two
bills to exempt certain vessels from a CWA permit requirement, thus restricting the population of
vessels subject to the VGP. One was a permanent permit moratorium for recreational vessels of
all sizes. The other act was a temporary permit moratorium for small commercial vessels and
commercial fishing vessels, which was extended twice by Congress and would have expired
December 18, 2014, had Congress not enacted an additional three-year extension in P.L. 113-281.
In the 114th Congress, bills addressing the temporary permit moratorium for small vessels and
regulation of ballast water discharges have been introduced (S. 373/H.R. 980 and S. 371). The
Senate Commerce Committee approved S. 373 in February 2015; the committee also included
provisions of this bill in S. 2829, which the Senate passed in June 2016, and S. 1611. Further, the
House has passed H.R. 4909, which includes the text of H.R. 980 as one title of that bill.
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EPA’s Vessel General Permits: Background and Issues
Contents
Background: Clean Water Act Requirements .................................................................................. 1
The 2008 Vessel General Permit and 2011 Draft Vessel General Permits ................................ 2
The 2013 VGP for Large Vessels .................................................................................................... 4
Ballast Water Requirements ...................................................................................................... 5
Non-Ballast Water Requirements .............................................................................................. 7
Additional Requirements for Certain Vessel Classes ................................................................ 8
Economic Impacts, Benefits, and Uncertainties........................................................................ 9
Issues ............................................................................................................................................. 10
Ballast Water Standards........................................................................................................... 10
Federal Preemption and State Role ......................................................................................... 12
Legal Challenges to the VGP ........................................................................................................ 14
Congressional Interest ................................................................................................................... 15
Small Vessel Permit Moratorium ............................................................................................ 15
Ballast Water Standards Legislation........................................................................................ 16
Appendixes
Appendix A. The sVGP ................................................................................................................. 18
Appendix B. Discharges Incidental to the Normal Operation of Military Vessels ........................ 20
Contacts
Author Contact Information .......................................................................................................... 21
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EPA’s Vessel General Permits: Background and Issues
I
n November 2011 the Environmental Protection Agency (EPA) proposed two Clean Water Act
permits to regulate certain types of discharges from vessels into U.S. waters. The proposed
permits would replace a single permit issued by EPA in 2008 that was due to expire in
December 2013. As proposed, the two permits would apply to approximately 71,000 large
domestic and foreign vessels and perhaps as many as 138,000 small vessels. This universe of
regulated entities is diverse as well as large, consisting of tankers, freighters, barges, cruise ships
and other passenger vessels, and commercial fishing vessels. Their regulated discharges are
similarly diverse, including among other pollutants non-native aquatic nuisance species (ANS),
nutrients, pathogens, oil and grease, metals, and toxic chemical compounds that can have a broad
array of effects on aquatic species and human health, many of which can be harmful.
Developing and administering a regulatory program covering sources so numerous and different
from one another is more complicated than for other currently regulated sources. Because the
sources themselves are mobile and move between jurisdictions, the traditional mechanism of
regulating through state-issued permits is problematic. Many regulated vessels are small entities;
thus, the economic impacts of regulatory requirements are an important consideration. Identifying
technology-based treatment systems and management practices that can control vessel discharges
effectively and economically presents many challenges.
The two permits proposed by EPA in 2011 included one (draft VGP) for large vessels to replace
the 2008 VGP, and one for smaller vessels covered by a congressionally enacted temporary
moratorium (draft sVGP). On March 28, 2013, EPA issued a final version of the VGP for large
vessels. It became effective on December 19, 2013. The permit for smaller vessels was issued on
September 10, 2014; it was scheduled to become effective on December 19, 2014, but Congress
passed a three-year extension as part of P.L. 113-281.
This report is an overview of the revised VGP for large vessels and two key issues: inclusion of
numeric performance standards to limit ballast water discharges from vessels, and controversies
about the role of states in regulating vessel discharges. It also reviews the final sVGP for small
vessels and Congress’s recent interest in these issues.
Background: Clean Water Act Requirements
The Clean Water Act (CWA) prohibits the discharge of pollutants from a point source into the
navigable waters of the United States without a permit. Vessels are defined in the statute as point
sources. In 1973, EPA promulgated a regulation that excluded discharges incidental to the normal
operation of vessels (including ballast water, but not including vessel sewage discharges, which
are regulated under CWA Section 312) from CWA permitting requirements. This long-standing
regulation was challenged in federal district court by environmental advocacy groups who wanted
EPA to address ballast water as a source of ANS in U.S. waters. In 2005 the court found that
Congress had directly expressed its intention that discharges from vessels be regulated under the
CWA, and that the 1973 regulation contradicted that intention. In September 2006 the court
issued a final order vacating (revoking) the regulatory exclusion as of September 30, 2008, and
remanding the ruling to EPA for further proceedings. The Ninth Circuit U.S. Court of Appeals
upheld the district court’s ruling on July 23, 2008.1 On June 17, 2008, EPA proposed two CWA
general permits in response to the court’s 2006 order, one applicable to commercial vessels and
one applicable to small recreational vessels.2
1
Northwest Environmental Advocates v. U.S. Environmental Protection Agency, 537 F.3d 1006 (9 th Cir. 2008).
2
U.S. Environmental Protection Agency, “Draft National Pollutant Discharge Elimination System (NPDES) General
(continued...)
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EPA’s Vessel General Permits: Background and Issues
CWA permits are either individual permits issued to specific facilities or general permits. Both
types of permit are issued for a specific period of time (not to exceed five years), after which the
permit must be renewed. A general permit covers multiple facilities within a specific category
having common elements, such as similar types of operations that discharge the same types of
wastes. Because of the large number of potential sources of vessels,3 EPA believed that it made
administrative sense to use general permits, rather than individual permits. In August 2008, the
federal district court agreed to EPA’s request to delay vacating the regulatory exemption for three
months, to ensure that permits could be issued before the exemption was eliminated. EPA
finalized a Vessel General Permit for vessels subject to a permit requirement on December 18,
2008. The permit became effective on December 19, 2008. However, on the same day, the federal
district court granted an EPA motion to delay vacating the existing regulatory exclusion until
February 6, 2009. Thus, the effective date remained December 19, 2008, but regulated sources
were not required to comply with terms of the permit until February 6, 2009.
The 2008 Vessel General Permit and 2011 Draft Vessel
General Permits
In July 2008, Congress enacted two bills to exempt discharges incidental to the normal operation
of certain types of vessels from CWA permitting, thus restricting the population of vessels subject
to EPA regulation. The first measure, P.L. 110-288, the Clean Boating Act of 2008, exempted
discharges incidental to the normal operation of recreational vessels of all sizes from CWA
permitting requirements.4 The legislation directed EPA and the Coast Guard to create a regulatory
regime under new CWA Section 312(o); EPA is currently developing regulations for recreational
vessels, as required by the legislation.5
The second measure, P.L. 110-299, provided a two-year moratorium on CWA permitting for
certain discharges from commercial fishing vessels of all sizes and non-recreational vessels less
than 79 feet in length. This moratorium has been extended three times. First, it was extended to
December 18, 2013, by P.L. 111-215. During the moratorium, EPA was directed to study the
discharges from these vessels and submit a report to Congress.6 The 112th Congress extended the
permit moratorium for one more year, until December 18, 2014, in P.L. 112-213. And in the 113th
Congress, legislation providing an additional three-year extension, until December 18, 2017, was
enacted as part of a Coast Guard reauthorization bill (S. 2444/P.L. 113-281). Ballast water
discharges from vessels less than 79 feet in length are not affected by the moratorium (although
EPA believes that few of these smaller vessels use or discharge ballast water) and are required to
be authorized by permits. (See “Small Vessel Permit Moratorium” for discussion of legislation.)
(...continued)
Permits for Discharges Incidental to the Normal Operation of Vessels,” 73 Federal Register 34296-34304, June 17,
2008.
3
EPA estimated that the universe of vessels potentially affected by the court’s order and proposed permits could
include over 13 million recreational boats and 98,000 commercial fishing, passenger, cargo and other vessels operating
in U.S. waters.
4
The CWA defines recreational vessels to mean any vessel that is manufactured or used primarily for pleasure, or that
is leased, rented, or chartered to a person for the pleasure of that person. CWA Section 502(25); 33 U.S.C. 1362(25).
5
See http://water.epa.gov/lawsregs/lawsguidance/cwa/vessel/CBA/about.cfm.
6
U.S. Environmental Protection Agency, Study of Discharges Incidental to Normal Operation of Commercial Fishing
Vessels and Other Non-Recreational Vessels Less Than 79 Feet, August 2010, http://water.epa.gov/polwaste/npdes/
vessels/Report-to-Congress.cfm.
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EPA’s Vessel General Permits: Background and Issues
However, P.L. 110-288 and P.L. 110-299 did not exempt or provide a permitting moratorium for
all discharges from all types of vessels. Thus, the Vessel General Permit (VGP) finalized by EPA
in December 2008 gave permit coverage to an estimated 72,000 vessels larger than 79 feet in
length used in a transportation capacity that were not affected by the moratorium in P.L. 110-299,
including tankers, freighters, barges, and cruise ships, and it also applied to ballast water
discharges from vessels covered by the moratorium.7 It applied to pollutant discharges, including
ballast water, that are incidental to the normal operation from non-recreational vessels that are 79
feet or more in length, and to ballast water discharges from commercial vessels of less than 79
feet and commercial fishing vessels of any length. Geographically, it applied to discharges into
waters of the United States in all states and territories, extending to 3 miles from the baseline (i.e.,
shoreline).8
In the 2008 permit, EPA identified 26 types of waste streams or discharge types from the normal
operation of covered vessels (some are not applicable to all vessel types). The types of pollutant
discharges subject to the permit included ANS (also known as invasive species), nutrients,
pathogens, oil and grease, metals, and pollutants with toxic effects.
The CWA requires that all point source discharges must meet effluent limitations representing
applicable levels of technology-based control. Under the 2008 VGP, EPA concluded that, based
on available information, it was not practicable to derive numeric effluent limits to achieve
technology-based controls for many of the discharge types regulated under the permit. Thus, most
discharges covered by the 2008 VGP were controlled by specific best management practices
(BMPs), many of which were already in use.9 Some vessel categories, such as cruise ships, were
subject to more detailed requirements for discharges such as graywater (water from showers,
baths, sinks, and laundry facilities) and pool and spa water. Monitoring, recordkeeping, and
reporting requirements applied, as well.
Procedurally, vessels larger than 79 feet or more than 300 gross tons (an estimated 50,000
domestic and foreign vessels) were required to submit a Notice of Intent (NOI) to be covered by
the permit. Smaller regulated vessels were automatically covered. There were no permit fees.
Projected industry compliance costs (including paperwork requirements) ranged from a low of
$8.9 million to $23.0 million annually; they varied based on assumptions of vessel populations
affected and the number of instances in which incremental costs would be incurred.
In anticipation of the expiration of the 2008 VGP on December 18, 2013, in November 2011, EPA
proposed two Vessel General Permits, one for large vessels (draft VGP) to replace the 2008 VGP,
and one for smaller vessels to authorize discharges from vessels covered by the congressionally
enacted temporary moratorium (draft sVGP).
Both draft permits proposed to regulate discharges from 26 types of waste streams (like the 2008
VGP), plus an additional waste stream category—fish hold effluent. Pollutants in these waste
streams can include ANS, nutrients, pathogens, oil and grease, metals, and toxic chemical
compounds. Both draft permits largely retained the 2008 permit’s approach of relying on specific
behaviors or BMP techniques to control most regulated discharges, as EPA again concluded that it
is infeasible to develop numeric effluent limits for most controlled discharges covered by the
7
U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) General
Permit for Discharges Incidental to the Normal Operation of a Vessel,” 73 Federal Register 79473-79481, December
29, 2008.
8
Discharges incidental to the normal operation of military vessels are not subject to the EPA permit; see Appendix B.
9
BMPs include practices that generally are preventive in nature, such as vessel maintenance techniques or training
personnel in use of on-board equipment to minimize pollutant discharges.
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EPA’s Vessel General Permits: Background and Issues
permit. The draft VGP for larger vessels contained several changes that are discussed below—
notably, including for the first time numeric ballast water discharge limits, more stringent effluent
limits for oil-to-sea interfaces and exhaust gas scrubber washwater, as well as specifications to
manage fish hold effluent. Both draft permits included streamlined recordkeeping and reporting
requirements, modifying aspects of the 2008 VGP, such as allowing electronic recordkeeping and
requiring an annual report in lieu of a one-time report and annual noncompliance report.
On March 28, 2013, after reviewing over 5,500 public comments on the draft permit, EPA issued
a final permit to replace the 2008 VGP.10 Requirements of the final permit are similar to the draft
VGP. Smaller vessels continued to be covered by the congressional moratorium provided by P.L.
112-213 until December 18, 2014. If the moratorium had expired without further congressional
action, smaller vessels would have been subject to the sVGP beginning on December 19.11
However, as described below, Congress enacted an extension of the moratorium until December
18, 2017.
The following sections of this report provide an overview of EPA’s revised VGP for large vessels
and two issues of particular interest—requirements concerning ballast water management, and
federal and state roles. It reviews recent congressional interest in these topics. Appendix A
describes the sVGP for smaller vessels, now superseded by congressional action.
The 2013 VGP for Large Vessels
The 2013 final VGP applies to seven categories of vessels operating in a capacity of
transportation that have discharges incidental to their normal operations into waters subject to the
permit: commercial fishing including fish processing, freight barge, freight ship, passenger
vessel, tank barge, tank ship, and utility vessel. Freight barges (such as open and covered dry
cargo barges, 68% of total), tank barges (e.g., liquid cargo barges, 12%), and utility vessels (such
as research vessels and tug vessels, 11%) account for the majority of the 58,600 domestic vessels
eligible for coverage under the VGP. Of the 12,430 foreign vessels eligible for coverage, freight
ships (e.g., container ships) account for 66%, and tank ships (such as oil tankers) account for 28%
of the total. Like the 2008 VGP, “waters subject to the permit” means “waters of the United
States,” including the territorial seas as defined in the CWA and extending to 3 miles from the
baseline.
EPA concluded that requiring all covered vessels to submit an NOI indicating coverage under the
replacement VGP would be administratively impracticable, so the permit does not require
operators of vessels smaller than 300 gross tons and with capacity to carry less than 8 cubic
meters (2,113 gallons) of ballast water to submit NOIs. Consequently, more than 10,000 vessels
would be automatically covered by the permit without submitting an NOI. This is essentially the
same approach used in the 2008 VGP. However, all covered vessels are subject to the permit’s
requirements and must complete a Permit Authorization and Record of Inspection form and
maintain that form on board at all times. The purpose of the form, according to EPA, is to confirm
10
U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) General
Permit for Discharges Incidental to the Normal Operation of a Vessel; Notice of final permit issuance,” 78 Federal
Register 21928-21945, April 12, 2013. Full text of the permit and accompanying permit fact sheet and economic
analysis are available at http://cfpub.epa.gov/npdes/vessels/vgpermit.cfm#final.
11
U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination system (NPDES) Small
Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels Less Than 79 Feet,” 79 Federal
Register 53702-53707, September 10, 2014. Full text of the sVGP and accompanying permit fact sheet and economic
and benefits analysis are available at http://water.epa.gov/polwaste/npdes/vessels/Small-Vessel-General-Permit.cfm.
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EPA’s Vessel General Permits: Background and Issues
that vessels owners and operators have read the terms of the VGP and understand their obligation
to comply.
As noted above, CWA permits normally are issued for a specific period of time, not to exceed five
years, with a provision for reapplying for further permit coverage prior to the expiration date.
EPA had proposed a four-year permit term for the draft VGP, as a way to ensure that the permit
keeps pace with developing technologies, especially for ballast water treatment, but the final
permit provides a five-year term, consistent with most EPA-issued CWA permits.12
The 2013 permit’s principal ballast water and non-ballast modifications of the 2008 VGP are
discussed next, along with EPA’s economic and benefits analysis.
Ballast Water Requirements
Ballast water discharge has been identified as a major pathway for the introduction of ANS. Ships
use large amounts of ballast water for stability during transport. Ballast water is often taken on in
the coastal waters in one region after ships discharge wastewater or unload cargo, and then
discharged at the next port of call, wherever more cargo is loaded, which reduces the need for
compensating ballast. Thus, the practice of taking on and discharging ballast water is essential to
the proper functioning of ships, because the water that is taken in or discharged compensates for
changes in the ship’s weight as cargo is loaded or unloaded, and as fuel and supplies are
consumed. However, ballast water discharge typically contains a variety of biological materials,
including non-native ANS that can alter aquatic ecosystems. Concern about harmful impacts of
ballast water discharge was the core of the legal challenge by environmental groups to EPA’s
1973 regulations, which ultimately led to issuance of the 2008 VGP.
The ballast water requirements of the 2008 VGP are minimal, largely requiring what current
Coast Guard rules require—primarily use of ballast water exchange, or BWE. The 2008 permit
mandates mid-ocean BWE for ships traveling outside the 200-nautical-mile exclusive economic
zone (EEZ) of the United States. This requirement already applies under a 2004 Coast Guard rule
(codified at 33 C.F.R. Part 151). EPA’s VGP also requires BWE at least 50 nautical miles from
shore for vessels engaged in Pacific nearshore voyages, which are not covered by the Coast
Guard’s mandatory exchange procedures. Further, the 2008 VGP requires vessels that declare
they have “no ballast on board” either to seal the ballast tanks to prevent any discharge or to carry
out saltwater flushing. The 2008 permit requires vessel operators to maintain a log book and
records of ballast water management and submit reports of noncompliance to EPA annually.
The 2008 VGP does not include numeric limits on living organisms or pathogenic discharges,
which some environmental groups have advocated that EPA issue. EPA explained this position in
a fact sheet accompanying the 2008 permit.13
EPA is not requiring any numeric treatment standards for the discharge of living
organisms as part of this permit issuance and is instead requiring management practices
(e.g. ballast water exchange) that decrease the risk of ANS introduction. EPA is
proposing this approach because treatment technologies that effectively reduce viable
living organisms in a manner that is safe, reliable, and demonstrated to work onboard
12
U.S. Environmental Protection Agency, 2013 Final Issuance of National Pollutant Discharge Elimination System
(NPDES) Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels, Fact Sheet,
November 30, 2011, p. 12. Hereinafter, VGP Fact Sheet.
13
U.S. Environmental Protection Agency, 2008 Final Issuance of National Pollutant Discharge Elimination System
(NPDES) Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels Fact Sheet,
December 2008, pp. 62-63.
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vessels are not yet commercially available ... [R]equiring a numeric effluent limit for the
discharge of living organisms is not practicable, achievable, or available at this time....
EPA will consider establishing treatment requirements in the next generation of permits
that will provide for compliance with treatment standards that will be expressed as units
of living or viable organisms per unit of volume in ballast water discharge.
While the 2013 VGP contains a number of ballast water BMP and recordkeeping requirements
similar to the 2008 permit, the 2013 permit departs from the 2008 permit by specifying ballast
water numeric discharge limits. By replacing the non-numeric limitation for ballast water in the
2008 VGP with numeric limits, EPA expects that the changes will achieve significant reductions
in the number of living organisms discharged via ballast water into waters subject to the permit.
The VGP sets the numeric effluent limits for ballast water in terms of maximum acceptable
concentration of living organisms per cubic meter discharged, as shown in the text box below. As
discussed further below (see “Ballast Water Standards”), EPA now concludes that treatment
technologies are available to meet limits in the VGP, and the requirements are economically
practicable and economically achievable.
Ballast Water Numeric Discharge Limits in the 2013 VGP
1. For organisms greater than or equal to 50 micrometers in minimum dimension: discharge must include fewer than
10 living organisms per cubic meter of ballast water.
2. For organisms less than 50 micrometers and greater than or equal to 10 micrometers: discharge must include
fewer than 10 living organisms per milliliter (mL) of ballast water.
3. Indicator microorganisms must not exceed:
—For Toxicogenic Vibrio cholerae (serotypes O1 and O139): a concentration of less than 1 colony forming unit (cfu)
per 100 mL.
—For Escherichia coli: a concentration of fewer than 250 cfu per 100 mL.
—For intestinal enterococci: a concentration of fewer than 100 cfu per 100 mL.
The numeric limits in the VGP are identical to performance standards specified in the
International Maritime Organization’s (IMO’s) 2004 International Convention for the Control and
Management of Ships’ Ballast Water and Sediment.14 They also are the same as standards
finalized by the Coast Guard in 2012 under 33 C.F.R. Part 151 and 46 C.F.R. Part 162.15 Many
ballast water treatment systems produce or use biocides as a disinfection agent to reduce living
organisms present in the ballast water tank, but discharges of such substances may cause or
14
The IMO, a body of the United Nations, sets international maritime vessel safety and marine pollution standards.
Numeric discharge limits in the IMO ballast water convention, referred to as the D-2 standards, will enter into force 12
months after ratification by at least 30 nations, representing 35% of the world merchant shipping tonnage. As of April
2016, this convention had been ratified by 44 nations, representing 34.79% of the world merchant shipping tonnage,
but has not entered into force. The United States has not ratified the convention.
15
U.S. Department of Homeland Security, Coast Guard, “Standards for Living Organisms in Ships’ Ballast Water
Discharged in U.S. Waters; Final rule,” 77 Federal Register 17254-17320, March 23, 2012. This rule, as proposed in
2009, would have provided standards in two phases. Under that proposal, if a practicability review shows it is feasible,
more stringent Phase 2 standards would apply by January 1, 2016, to new vessels constructed after that date and
existing vessels that have not installed a ballast water management system by that date. The proposed Phase 2 standards
would set concentration limits 1,000 times more stringent than Phase 1 standards for the smallest viable organisms and
also would set limits on the discharge concentration for bacteria and viruses. However, the final Coast Guard rule
promulgated in March 2012 defers the Phase 2 standard, pending assessment of additional data on available technology
and development of a subsequent rule with an economic and environmental analysis to support a Phase 2 standard. The
Coast Guard’s authority for these rules is the Nonindigenous Aquatic Nuisance Prevention and Control Act, as
amended by the National Invasive Species Act (16 U.S.C. 4701 et seq.). The Coast Guard rule does not apply to ballast
water discharges from military vessels; see Appendix B.
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contribute to violation of applicable water quality standards. Thus, the VGP also includes biocide
effluent limitations to protect aquatic life. The permit sets limits of 200 micrograms per liter
(µg/l) of chlorine dioxide, 500 µg/l of peracetic acid, 100 µg/l of ozone, and 1,000 µg/l of
hydrogen peroxide.
Vessels may comply with the concentration-based numeric treatment limits in one of four ways:
(1) discharge treated ballast water meeting the applicable numeric limits (i.e., by using treatment
technology); (2) transferring the ship’s ballast water to a third party for on-shore treatment; (3)
use treated municipal/potable water as ballast water; or (4) by not discharging ballast water. EPA
estimates that approximately 2,880 domestic and 5,270 foreign vessels are potentially subject to
the ballast water standards because they operate with on-board ballast water tanks, and the agency
anticipates that about 40% of covered vessels will comply by installing a ballast water treatment
system. EPA has concluded that several treatment technologies capable of meeting the permit’s
numeric limits are commercially and economically available now for shipboard installation.
Under the VGP, new vessels constructed after December 1, 2013, must comply with the permit’s
numeric limits upon delivery. EPA determined that it would be infeasible to require all existing
vessels to be fitted with ballast water treatment systems with a one-to-two year schedule. Thus,
the permit requires existing vessels, constructed before December 1, 2013, to comply under a
staggered schedule.
Existing vessels with ballast water capacity of less than 1,500 cubic meters must
comply by the time of their first scheduled drydocking after January 1, 2016.
Existing vessels with ballast water capacity of more than 1,500 and less than
5,000 cubic meters must comply by the time of their first scheduled drydocking
after January 1, 2014.
Existing vessels with ballast water capacity greater than 5,000 cubic meters must
comply by the time of their first scheduled drydocking after January 1, 2016.
This time schedule is consistent with the timelines in the Coast Guard’s March 2012 rules,
described above. The IMO D-2 standard includes a phased schedule for similar ballast water
capacity sizes of vessels, but with slightly different implementation dates.
Certain vessel classes would not be subject to the ballast water numeric limits in the VGP. These
include vessels engaged in short-distance voyages (e.g., they travel no more than 10 nautical
miles), unmanned and unpowered barges, small inland and seagoing vessels (less than 3,000
gross tons), and existing bulk carrier vessels built before January 1, 2009, that operate solely
within the Great Lakes (commonly known as Lakers). In general, according to EPA, these vessels
face a number of challenges for managing ballast water, and in the case of existing Lakers there
currently are no available treatment systems. Thus EPA has concluded that it is more appropriate
to require these vessels to use BMPs such as avoiding discharge of ballast water in
environmentally sensitive areas, but not require compliance with numeric limits. EPA will follow
the state of technologies currently being tested for Lakers and will consider revising permit
requirements during the term of the permit if technologies become available.16
Non-Ballast Water Requirements
The 2013 VGP contains several more stringent effluent limits/BMPs than in the 2008 VGP for
certain vessel discharges. First, it requires all vessels to use “environmentally acceptable
16
VGP Fact Sheet, p. 101. Lakers built after January 1, 2009, must meet ballast water treatment limits in the permit.
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lubricants” on mechanical and other equipment that operate at the sea interface, such as wire rope
or cables, unless technically infeasible. Vessel operators often use lubricants to maintain the
functionality of such equipment, which can release quantities of oil or grease to water. The permit
also requires maintenance BMPs to prevent leaks that could lead to oil discharges.
Second, the permit prescribes BMPs to reduce discharges of fish hold effluent, which was not
covered by the 2008 VGP. Commercial fishing vessels use various methods to store seafood after
it is caught. Fish hold effluent is composed of seawater, melted ice, or ice slurry that is collected
inside fish hold tanks. It contains pollutants such as biological wastes and nutrients which result
from seafood catch. In addition, because holding tanks often are cleaned or disinfected between
catches, the resulting effluent can contain organic material, oils, nutrients, and bacteria and
viruses. BMPs specified in the permit are intended to minimize the discharge of fish hold water
and ice while vessels are stationary at a pier.
Third, the VGP includes numeric limits to control discharge to water of harmful exhaust
emissions from engines that power ocean going vessels. The permit sets numeric limits and
monitoring requirements for pH, turbidity, polycyclic aromatic hydrocarbons (PAHs), and nitrates
plus nitrites. The limits are consistent with guidelines established by the IMO to implement
engine and fuel standards in Annex VI of the International Convention for the Prevention of
Pollution from Ships (MARPOL 73/78).17
The permit also includes certain administrative modifications of the 2008 VGP, which requires
owners/operators to self-inspect their vessels routinely as well as annually in more detail and keep
written records. The 2008 permit allowed use of electronic recordkeeping systems, and the 2013
permit includes provisions clarifying how such systems are to be maintained in forms as readable
and legally dependable as a paper equivalent. All vessels must report electronically, unless
specifically exempted. The 2013 VGP modifies the earlier permit’s reporting requirements by
consolidating requirements for an annual noncompliance report as part of an annual report,
instead of calling for separate reports.
Additional Requirements for Certain Vessel Classes
Under the 2008 VGP, cruise ships are subject to more detailed requirements for certain
discharges, such as graywater and pool and spa water, and additional monitoring and reporting.
These additional requirements recognize that cruise ships generate considerably more graywater
discharges than a container or cargo ship, and onboard amenities such as photo developing and
dry cleaning produce chemicals that are toxic to the aquatic environment and, thus, are not
authorized by the permit.18 The 2008 VGP includes BMPs as well as numeric effluent limits for
fecal coliform and residual chlorine in cruise ship discharges of graywater that are based on U.S.
Coast Guard rules for discharge of treated sewage or graywater in Alaska. It also includes
operational limits on cruise ship graywater discharges in nutrient-impaired waters, such as
Chesapeake Bay or Puget Sound. The 2013 VGP retains the same numeric limits for graywater
discharges, but tightens operational limits: cruise ships are prohibited from discharging graywater
within 3 nautical miles of shore (rather than 1 nautical mile from shore under the 2008 VGP)
17
MARPOL is an international treaty that regulates discharges from vessels. It includes several annexes that regulate
specific types of vessel pollution, such as oil, garbage, and plastic. In the United States, MARPOL is primarily
implemented by the Act to Prevent Pollution from Ships (33 U.S.C. 1901). The Coast Guard is the lead agency for
implementing this statute.
18
For background information, see CRS Report RL32450, Cruise Ship Pollution: Background, Laws and Regulations,
and Key Issues, by (name redacted) .
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unless it has been treated to the standards specified in the permit. In general, the 2013 permit
includes the same requirements for large (more than 500 passengers) and medium cruise ships
(carrying 100 to 499 passengers), but with some flexibility for the latter category because of
differences in graywater holding capacity and operation.
The 2013 VGP also includes additional requirements for large ferries (to minimize potential
spills, drips, and leaks associated with carrying vehicles), barges (to prevent contamination of
condensation with oily or toxic materials), oil and petroleum tankers (to protect against
environmentally harmful discharges of oil during cargo loading and unloading), research vessels
(to authorize only discharges for the purpose of conducting research on the aquatic environment
or its natural resources), and emergency vessels (specifically to allow discharges incidental to the
public safety responsibilities of firefighting and similar boats).
Economic Impacts, Benefits, and Uncertainties
EPA estimates that the total annual incremental costs of implementing the VGP will range from
$7.2 million to $23.0 million (in 2010$) for domestic vessels.19 For vessels covered by this
permit, these costs would be in addition to previous costs for complying with the 2008 VGP,
described above. About 90% of the costs of the permit are associated with requirements
mandating the use of environmentally acceptable lubricants, followed by those for ballast water.
Further, EPA’s estimates of compliance costs do not include the capital costs of installing,
operating, and maintaining ballast water treatment systems, as these costs were previously
estimated by the Coast Guard in its 2009 regulatory proposal to be approximately $168 million
per year and thus represent baseline for estimating costs of the 2013 VGP.
The average per vessel compliance costs of the 2013 permit range between $51 and $7,004,
depending on the number of applicable discharge categories and existing baseline practices. Tank
ships are expected to have the highest average compliance costs, due to potential incremental
costs for oil tankers exclusively engaged in coastwise trade that may install onboard ballast water
treatment systems to comply with the 2013 permit. Overall, EPA concludes that the estimated
compliance costs generally represent a small share of per vessel operating revenue. Thus, meeting
the 2013 VGP permit requirements is economically practicable and achievable for permittees.20
The principal benefits of the VGP will be reduced risk of ANS introduction and enhanced
environmental quality from reduced pollutants, according to EPA. EPA concludes that the
permit’s ballast water management practices—including discharge standards, monitoring, and
reporting—should reduce the number of ANS invasions, thus preventing significant future
damages to fisheries, water-based recreation and tourism, biodiversity and ecosystems, threatened
and endangered species, human health, and infrastructure. However, the agency cannot quantify
these benefits.
[T]he complexity of analyzing the probability of ANS introduction and spread, the wide
range and varied nature of impacts ANS invasions can cause, and the great breadth of the
scope of this Permit prohibit EPA from developing a quantified estimate of these
benefits.21
19
EPA did not estimate compliance costs for foreign vessels subject to the VGP.
U.S. Environmental Protection Agency, Economic and Benefits Analysis of the Proposed 2013 Vessel General
Permit (VGP), October 30, 2011, p. x. EPA updated overall compliance cost estimates but did not issue a revised
economic analysis when it issued the final 2013 VGP.
21
Ibid., p. 137.
20
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Likewise, EPA concludes that the permit’s controls on specific discharges, as well as its general
housekeeping requirements, can be expected to generate both monetized benefits—such as
preventing fishery closures and adverse human health impacts and increasing recreation
opportunities—and nonmonetized benefits—such as preventing further stress on biodiversity and
ecosystems. The magnitude of benefits is not calculable, according to EPA.22
EPA acknowledged significant uncertainty about several assumptions affecting estimated costs of
the VGP, including uncertainty regarding discharge control practices currently implemented and
the number of vessels expected to implement new practices. There also is uncertainty, EPA said,
about costs of certain treatment systems, such as for bilge water, and practices such as use of
environmentally acceptable lubricants, because of limited data and unknowns about applicability
to different vessels. As a result, EPA concluded that its estimates should be interpreted as
illustrative of a range of incremental costs, not as a precise account of costs that a vessel owner
may incur for any specific vessel.23
Issues
Two prominent issues raised by the 2013 VGP are questions about inclusion of specific numeric
ballast water discharge limits in the permit, and controversies about the role of states in regulating
vessel discharges.
Ballast Water Standards
Many observers expected EPA to propose numeric limits in the next iteration of the VGP after the
2008 permit, in view of the IMO and Coast Guard performance standards, which were
promulgated in 2012. At issue had been whether EPA would propose more stringent numeric
limits, as some environmental advocacy groups favor and a few states have already adopted.
Anticipating expiration of the 2008 VGP, in 2010 EPA requested two reports to advise the agency
on possible changes to the permit’s ballast water management requirements. First, EPA and the
Coast Guard jointly asked the National Research Council (NRC) of the National Academy of
Sciences to evaluate the state of the science to support a quantitative approach to setting ballast
water discharge standards, that is, specific numeric limits. The two agencies sought advice to
better understand the relationship between concentrations of living organisms in ballast water
discharges and the probability of ANS successfully establishing populations in U.S. waters, that
is, whether setting maximum permissible limits on live organisms in ballast effluent can
adequately protect against establishment of ANS in aquatic systems. The resulting NRC report
concluded that the density of organisms released in a ballast discharge is “but one of scores of
variables that can and do influence invasion outcome.”24 The NRC concluded that, while a
benchmark discharge standard that reduces the concentration of organisms below levels achieved
by open-sea BWE is an important first step, additional research is needed in order to focus on the
relationship between the quantity, quality, and frequency of release and the risk of successful
invasion by ANS.
22
Ibid., p. 145.
Ibid., p. 114.
24
National Research Council, Committee on Assessing Numeric Limits for Living Organisms in Ballast Water,
Assessing the Relationship Between Propagule Pressure and Invasion Risk in Ballast Water, June 2011, p. 5,
http://www.nap.edu/catalog.php?record_id=13184.
23
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Second, EPA asked its Science Advisory Board (SAB) to provide advice on technologies and
systems to minimize the impacts of ANS in vessel ballast water discharge. EPA requested the
SAB to assess whether existing shipboard treatment technologies can reach specified
concentrations of organisms in vessel ballast water, how these technologies might be improved in
the future, and how to overcome limitations in existing data. The SAB’s overarching
recommendation in its report25 is that, rather than relying solely on numeric standards, the agency
should adopt a risk-based approach to minimize impacts of invasive species in vessel ballast
water discharge, including methods to reduce invasion events, process and environmental
monitoring, containment, and eradication. The SAB found that several existing technologies have
been demonstrated that are capable of meeting the IMO D-2/Coast Guard and more stringent
standards, but that technology is not available to reliably test for standards 100 or 1,000 times
more stringent than the IMO standard, such as the Phase 2 standard included in the 2009 Coast
Guard proposal26 or those adopted by California and New York.27 Reaching a more stringent
standard would require new treatment systems that have not been tested in order to determine
their practicality and cost, according to the SAB.
These reports clearly influenced EPA’s development of the 2011 draft VGP, which proposed to
harmonize the permit’s requirements for controlling ANS in ballast water discharge with the
numeric limits in the IMO D-2 standards/Coast Guard rule, plus continued use of BMPs. EPA
referenced both reports in explaining its conclusion that a more rapid implementation schedule
than in the IMO D-2 standard is not economically achievable at this time, nor are more stringent
numeric discharge limits practicable at this time. In particular, EPA concluded that data cited by
the California State Lands Commission to justify that state’s more stringent discharge limits “are
not adequate to determine whether any of the treatment systems can meet a significantly more
stringent limit than that proposed for this permit term.”28
Nevertheless, EPA recognized that some commenters would urge the agency to require numeric
limits more stringent than the IMO D-2/Coast Guard standards. Many environmental groups and
some states have argued, for example, that setting a higher standard will better protect water
quality from ANS invasion while also serving as incentive to industry to develop technology that
meets the standard. Thus, EPA requested public comment on the appropriateness of the proposed
ballast water controls in the draft VGP and whether to adopt alternative treatment limits (such as
the California standards), as well as whether additional management measures discussed in the
25
U.S. Environmental Protection Agency Science Advisory Board, Efficacy of Ballast Water Treatment Systems: A
Report by the EPA Science Advisory Board, EPA-SAB-11-009, July 12, 2011.
26
The March 2012 final Coast Guard rule does not include Phase 2 standards. See infra footnote 15.
27
California Public Resources Code Section 71200, enacted in 2006. In response to the law, the California State Lands
Commission promulgated standards 1,000 times more stringent than the IMO D-2/Coast Guard proposed Phase 1
standards and requiring compliance beginning January 1, 2009. California’s rules also prohibit discharge of detectable
living organisms for the largest size classes of organisms (greater than 50 micrometers in size). However, the SAB
found that it is not reasonable to assume that current ballast water management systems are able to reliably meet or
closely approach a “no detectable living organism” standard. In 2008 the New York Department of Environmental
Conservation (DEC) promulgated rules requiring existing vessels to treat ballast waters to a level 100 times more
stringent than the IMO D-2 standard in January 2013. Vessels built after that date must include technology to treat
ballast water to the same level as California’s standards. However, in February 2012, the DEC announced that it would
delay the effective date of these more stringent standards until December 19, 2013 (the day after expiration of the 2008
VGP).
28
U.S. Environmental Protection Agency, 2011 Proposed Issuance of National Pollutant Discharge Elimination
System (NPDES) Vessel General Permit (VGP) for Discharges Incidental to the Normal Operation of Vessels, Draft
Fact Sheet, November 30, 2011, p. 83.
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NRC or SAB reports (such as managing ballast uptake or reducing ballast water discharge
volumes) should be incorporated in the permit.
In the 2013 final VGP, EPA retained the position taken in the 2011 draft VGP that, based on
current treatment and monitoring technologies, more stringent standards, such as California’s,
cannot be supported. EPA continues to agree with the NAS that establishing precise, quantifiable
ballast water discharge standards more stringent than the IMO D-2/Coast Guard standards is not
possible at this time. The final permit does not include additional management measures as a
general requirement. However, the 2013 permit acknowledges unique vulnerabilities of the Great
Lakes system to ANS invasion through ballast water discharges, and it includes additional
protection for these waters. It requires all vessels that operate outside the EEZ and more than 200
nm from any shore to conduct saltwater flushing of ballast tanks before entering Great Lakes
waters through the Saint Lawrence Seaway System. Also, all vessels that are equipped to carry
ballast water and that enter the Great Lakes must conduct open ocean ballast water exchange.
Federal Preemption and State Role
Preemption of state regulatory programs with a uniform national standard has been a key issue in
dispute concerning efforts to regulate discharges from vessels, including ballast water discharges.
The CWA permits EPA to authorize qualified states to administer the act’s principal permitting
program under Section 402, and EPA has done so for 46 states. Pursuant to CWA Section
402(c)(1), after such authorization, EPA suspends issuance of permits in lieu of the state. In other
situations when EPA has issued a CWA general permit covering a similar category of
dischargers,29 the EPA general permit only applies in non-authorized states where EPA retains
permitting authority.30 In such cases, the EPA general permit typically is the model for a general
permit issued directly by the authorized state; the state-issued permit must be at least as stringent
as the EPA permit, but can be more stringent. Further, CWA Section 510 allows states to adopt
standards, discharge limitations, or other requirements more stringent than federal rules, meaning
that if a state were to assume the responsibility to issue vessel permits under the CWA, it could do
so with alternative requirements no less stringent than the federal requirements. States often want
the flexibility to require standards more stringent than federal, and this general authority in the
statute gives states the ability to tailor and strengthen their implementation of federal water
quality programs to address local conditions and circumstances.
However, because vessels are mobile and frequently travel between jurisdictions, allowing
individual states to issue CWA permits to vessels would be administratively more complex than
issuing a permit to a factory or other stationary source. Thus, both the 2008 VGP and final 2013
VGP uniquely apply to vessel discharges into U.S. waters in all states and territories, regardless of
whether a state is authorized to administer other aspects of CWA permitting.31 By preempting
states from issuing CWA permits for discharges incidental to the normal operation of vessels, the
29
For example, EPA’s Multisector General Permit (MGSP) covers stormwater discharges from approximately 4,100
industrial facilities in 29 sectors. EPA’s Pesticide General Permit (PGP), issued in October 2011, authorizes point
source discharges from the application of pesticides to U.S. waters; this permit will regulate discharges from about
365,000 pesticide applicators.
30
Idaho, Massachusetts, New Hampshire, and New Mexico, plus the District of Columbia and most of the U.S.
territories.
31
EPA explains that it may issue permits in the 46 authorized states for discharges covered by the VGP because the
discharges included in the VGP were formerly excluded from state CWA permitting programs (until the 2006 court
ruling previously described, see “Background: Clean Water Act Requirements”) and are not considered part of any
currently authorized state program. 2013 VGP Fact Sheet, pp. 15-16.
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possibility of vessels being subject to potentially conflicting conditions as they move between the
waters of different states is theoretically precluded.
However, even without issuing CWA permits, a number of states are effectively requiring vessels
to meet their own discharge requirements beyond the VGP through a procedure called 401
certification. Under CWA Section 401, an applicant for a federal license or permit to conduct any
activity that may result in a discharge to waters of the United States must provide the federal
agency with a Section 401 certification. The certification, made by the state in which the
discharge originates, declares that the discharge will comply with applicable provisions of the
CWA, including state-established water quality standards. Section 401 provides states with two
distinct powers: one, the power indirectly to deny federal permits or licenses by withholding
certification; and two, the power to impose conditions upon federal permits by placing limitations
on certification. Where states impose conditions on a federal permit—such as the VGP—the
permittee must meet the additional state limitations as conditions of the federal permit. Prior to
issuance of the 2013 VGP, 25 states certified the permit with additional permit conditions
covering one or more of the 27 effluent streams. Of the 25 states, 14 certified the permit with
conditions applicable to ballast water discharges, either with specific numeric discharge
standards, or with more general language prohibiting nuisance conditions or other conditions in
order to protect state waters.32
A group of commercial shipping operators challenged the state certifications under the 2008
federal permit, contending that the shipping industry is placed in the difficult regulatory position
of being subject to a single federal permit with multiple state requirements.33 In federal court, the
vessel operators argued that EPA should have provided notice and opportunity for comment
before promulgating the final permit, which included the state certifications. They also argued
that EPA erred by failing to consider possible effects and costs of compliance with state
conditions. The court rejected the challenge, stating in its ruling that under the CWA, EPA does
not have the power to amend or reject state certifications, which must be attached to the permit.
The court wrote that petitioners do have recourse, including a challenge in state court to
certification conditions imposed by a particular state, a challenge in federal or state court if they
believe that a particular state’s law imposes an unconstitutional burden on interstate commerce, or
seeking modification of the CWA.34
States also have used their authority to issue state permits independent of the VGP. Both the
commercial shipping industry and environmental groups have challenged these state actions, on
differing grounds, but courts have generally upheld the permits. For example, a Minnesota
appellate court upheld the state’s permit despite challenges from an environmental group alleging
that the state did not perform an adequate water quality impact review before issuing the permit
and that the state failed to impose numeric limitations for ANS. Additionally, Michigan’s
permitting program and New York’s 401 certification of the 2008 federal permit were upheld after
challenges by shipping industry groups.35
The role of states in implementing the VGP is likely to remain an issue. EPA plans to provide a
clearinghouse of information and other tools to track development of each state’s 401 conditions.
32
See U.S. Environmental Protection Agency, Final 2013 VGP, Vessel General Permit for Discharges Incidental to the
Normal Operation of Vessels (VGP), March 28, 2013, Section 6, http://www.epa.gov/npdes/pubs/vgp_permit2013.pdf.
33
For comparison, 10 states certified the 2008 VGP with ballast water conditions.
34
Lake Carriers’ Association v. EPA, 652 F.3d 1, 10 (D.C. Cir 2011).
35
Mariel Yarbrough, “Ballast Water Permits Survive Challenges,” SandBar, a publication of The National Sea Grant
Law Center, vol. 8, no. 3 (2009), pp. 9-12.
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Legal Challenges to the VGP
Some environmental advocacy groups criticized the 2013 final permit, asserting that it does not
include adequate requirements to stop or reduce the spread of invasive species. Challenges to the
final permit were filed by the Natural Resources Defense Council, Inc. and the Northwest
Environmental Advocates, and the National Wildlife Federation, among others, in several federal
appeals courts. All of the challenges were consolidated in the U.S. Court of Appeals for the
Second Circuit in New York.
Another party in the consolidated legal challenge to the 2013 permit is the Canadian Shipowners
Association (CSA), which asked the court to review the VGP’s January 1, 2014, deadline for
implementing best available technology for ballast water management systems. At issue is the
fact that the Coast Guard has been granting compliance extensions to its ballast water rules
because of unavailability of certified technologies.36 The association argued that the deadline in
the VGP, which does not provide for similar extensions, was not realistic—a point that EPA has
conceded. EPA officials stated in congressional hearings that enforcement action against vessels
that are unable to install Coast Guard-approved technology to meet the numerical limits in the
2013 VGP would have a low priority for the agency. In April 2014, the federal court granted
CSA’s request to stay the January 1, 2014, VGP deadline for vessels operated by CSA members,
and subsequently the court agreed to a joint request by CSA and EPA to sever the shippers’
petition for review from the environmental groups’ challenge.
In October 2015, the court ruled on the environmentalists’ challenge and found that EPA acted
arbitrarily and capriciously in issuing parts of the 2013 VGP.37 The court stated that, in choosing
the IMO standard to control ballast water discharges, EPA did not adequately explain why
standards higher/more stringent than the IMO standard should be used, given available
technology. The court noted that the Science Advisory Board’s 2011 report, discussed previously,
identified a number of technologies, including onshore treatment, that can achieve standards
higher than IMO for one or more organism sizes, which would require only “reasonable/feasible
modifications.” The court said that EPA should have adjusted its standard in light of available
technologies discussed in the SAB report, or explained why it would not do so.
The court also agreed with environmentalists that EPA’s decision to exempt Lakers built before
2009 from numeric effluent limits of the VGP was arbitrary and capricious. The court said that
EPA’s belief that there is a lack of supply of updated shipboard systems for Lakers to meet
numeric standards was not a legitimate reason to exempt pre-2009 Lakers from the 2013 VGP.
The court remanded the permit to EPA for proceedings consistent with the opinion, but allowed
the 2013 permit to remain in place until EPA issues a new VGP. The Canadian Shipowners
Association’s challenge to the 2013 VGP is in abeyance until EPA issues its response to the
October 2015 remand order.
36
Coast Guard rules require owners and operators of vessels to install treatment technologies that have been certified
by two Coast Guard-approved, third-party laboratories. Because no technological system has yet attained approval, the
Coast Guard has granted two-year extensions to nearly 350 vessels.
37
Natural Resources Defense Council et al. v. EPA, No. 13-1745, 2nd Cir., Oct. 5, 2015.
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Congressional Interest
Congressional interest in this topic has been evident for some time—as reflected in the bills
enacted in 2008 and described previously to exempt certain vessels from a CWA permit
requirement.
Small Vessel Permit Moratorium
As discussed above, a permit moratorium for small non-recreational vessels and commercial
fishing vessels enacted in 2008 was temporary, but was extended twice by Congress until
December 18, 2014. The sVGP was to apply to these vessels, if the moratorium had expired
without congressional action.
Several bills that included provisions to make that moratorium permanent were introduced in the
113th Congress. These bills included H.R. 3464, which the House passed in May 2014 as a
provision of H.R. 4005; S. 2094, approved by the Senate Commerce and Transportation
Committee in July 2014; and S. 2963, approved by the Senate Environment and Public Works
Committee in December 2014. Supporters of proposals in these bills argued that small vessels
covered by the current moratorium—commercial fishing vessels and other small non-recreational
vessels—contribute little pollution and are not sources of invasive species, so a permanent permit
exemption is appropriate. Others disagree with this view and argued that because of
environmental concerns over vessel discharges, a permanent permit moratorium is inappropriate.
Other legislation, to provide a one-year extension of the permit moratorium, also was introduced
(H.R. 5769 and S. 2943). The House passed H.R. 5769 on December 3, 2014. Some supporters of
the approach in these bills said that a short-term extension would allow for comprehensive
congressional attention to a number of vessel issues, including ballast water standards, in the
114th Congress.
As the date for the expiration of the moratorium approached, on December 10, 2014, the Senate
and House passed legislation (S. 2444/P.L. 113-281) that includes a three-year extension of the
small vessel moratorium, until December 18, 2017. (See Appendix A for details of the sVGP that
would have become effective without this congressional action.)
Ballast water discharges from vessels less than 79 feet in length are not affected by the
moratorium and are required to be authorized by permits. According to EPA, owners and
operators of small vessels that discharge ballast water can seek coverage either under the general
permit for large vessels, requiring compliance with numeric standards (see “Ballast Water
Requirements” above), or the general permit for small vessels, which took effect December 18,
2014. As described in Appendix A, the sVGP prescribes best management practices (BMPs) for
ballast water discharges, not numeric standards.
In the 114th Congress, several bills that would make the existing temporary permit moratorium for
small vessels permanent have been introduced. These bills are S. 371, a bill that only addresses
the permit moratorium, and S. 373/H.R. 980, bills that also address ballast water standards, as
described next. The Senate Commerce, Science, and Transportation Committee approved S. 373
in February 2015, and it later included the text of the bill as titles of S. 2829, the Maritime
Administration Authorization and Enhancement Act for Fiscal Year 2017, which the Senate
passed by voice vote on June 29, 2016, and S. 1611, Coast Guard Authorization Act of 2015.
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Ballast Water Standards Legislation
Legislation addressing regulation and management of ballast water discharges that can contribute
aquatic invasive species into U.S. waters has been introduced in Congress a number of times
since 2000. In the 112th Congress, two House Transportation and Infrastructure Committee
subcommittees held a hearing that focused on how best to address invasive species problems.
Since then, several legislative proposals have sought to harmonize ballast water management
requirements in a single authority to be implemented by the Coast Guard, including provisions of
H.R. 2838, which the House passed in 2011.This legislation would establish a single federal
ballast water management standard (i.e., the IMO D-2/Coast Guard numeric standard described
previously). The legislation would supersede existing state standards or permits for any discharge
incidental to the normal operation of a commercial vessel, although states could develop a ballast
water inspection and enforcement program. It also would supersede EPA’s ballast water
management requirements under the CWA. Upon enactment of the legislation, state 401
certifications for ballast water discharge in the 2008 VGP would expire. The Coast Guard would
have the primary role for enforcing the ballast water performance standard.
In December 2012, Congress enacted H.R. 2838 with a number of modifications (P.L. 112-213).
First, as noted previously, it extended for one additional year the moratorium on CWA permit
requirements for small vessels that was first enacted in P.L. 110-299. Second, it deleted all of the
comprehensive ballast water management requirements in the House-passed bill.
In the 113th Congress, similar legislation to establish nationally uniform ballast water discharge
standards (S. 2094) was approved by the Senate Commerce, Science, and Transportation
Committee in July 2014, but no further action occurred.
In the 114th Congress, legislation addressing ballast water standards similar to S. 2094 has been
introduced: S. 373 and H.R. 980.38 As noted above, these bills also would make permanent the
existing temporary permit moratorium for small non-recreational vessels and commercial fishing
vessels.
The Senate Commerce Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard held a
hearing on issues concerning regulation and management of discharges incidental to the normal
operation of vessels on February 4, 2015. Maritime industry witnesses discussed the overlapping
Coast Guard and EPA regulatory requirements, and they also discussed concerns with additional
state-imposed requirements. Two weeks later, the full committee approved S. 373, the Vessel
Incidental Discharge Act. As approved, the bill is similar to the legislation that the committee
approved in the 113th Congress, with some amendments. The amended bill would allow a state to
adopt or enforce a more stringent ballast water performance standard if the Coast Guard
determines that compliance with the state standard is achievable and is consistent with obligations
under relevant international treaties or agreements. A second amendment would require vessels to
conduct saltwater flushing of ballast water tanks prior to entering the Great Lakes (as they are
required to do under the 2012 Coast Guard rule). As described above, the Commerce Committee
subsequently included the text of S. 373 as titles of S. 2829, the Maritime Administration
Authorization and Enhancement Act for Fiscal Year 2017, which the Senate passed by voice vote
on June 29, 2016, and S. 1611, the Coast Guard Authorization Act of 2015.
Further, on May 18, the House passed H.R. 4909, the National Defense Authorization Act for
FY2017. Title XXXVI of this bill, as passed, is identical to the text of H.R. 980. In the Statement
38
For additional discussion of the legislation, see CRS Report R44181, The Vessel Incidental Discharge Act:
Background and Issues, by (name redacted) .
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of Administration Policy on H.R. 4909, the Administration indicated that it objects to this title of
the bill.39 The Senate-passed companion bill to H.R. 4909 (S. 2943) does not contain similar
provisions.
39
Executive Office of the President, Office of Management and Budget, Statement of Administration Policy, H.R.
4909, National Defense Authorization Act for Fiscal Year 2017, May 16, 2016.
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Appendix A. The sVGP
On September 10, 2014, EPA issued notice of final permit issuance of the sVGP for small vessels.
This general permit was scheduled to become effective on December 19, 2014, unless the existing
temporary permit moratorium were extended by congressional action—as in S. 2444, passed by
Congress on December 10 (see “Small Vessel Permit Moratorium”). By announcing this final
permit more than three months ahead of the effective date, EPA intended to give affected vessel
owners and operators sufficient lead time to meet the permit’s requirements.
The 2014 sVGP was to apply to non-military, non-recreational vessels operating in a capacity of
transportation that are less than 79 feet in length. EPA estimated that approximately 115,000 to
138,000 domestic and 156 foreign vessels were potentially subject to the sVGP. They include
various types of commercial fishing vessels, tugs and towing vessels, water taxis and small
ferries, tour boats, and various other types of vessels used for non-recreational purposes.
Approximately 68,000 are commercial fishing vessels, comprising the largest category, which
includes vessels involved in fish catching, fish processing, and charter fishing. The second-largest
category is “unspecified” vessels (totaling 27,000), followed by passenger vessels (21,000), such
as charter fishing vessels and harbor cruise vessels.40
These vessels were excluded from the 2008 VGP by the initial moratorium in P.L. 110-299, which
Congress subsequently extended—most recently to December 18, 2017, in S. 2444.
The sVGP would have regulated several categories of discharges, including fuel management,
engine and oil control, solid and liquid waste management, vessel hull maintenance, graywater,
fish hold effluent, and ballast water. It prescribed BMPs such as preventive maintenance of
engines and fuel tanks to minimize the occurrence of leaks and spills that could release fuel or oil
to receiving waters, and the minimization of graywater discharges that may contain soaps and
detergents or nutrients into sensitive water bodies and confined waters. Most of the practices are
already widely implemented by vessels subject to the draft sVGP, according to EPA.
EPA concluded that few vessels covered by the sVGP are affected by ballast water management
requirements, because vessels less than 100 feet long typically do not load and discharge ballast
or rely on ballast for stability. However, for vessels less than 79 feet long that do use ballast as a
stability enhancer, the sVGP prescribed BMPs, because in EPA’s view, no existing treatment
systems are believed to have been developed for vessels with these small amounts of ballast
water. Appropriate ballast water management BMPs include avoiding or minimizing ballast water
uptake in areas with a high potential to contain harmful organisms and only discharging the
minimal amounts of ballast water necessary in U.S. coastal and inland waters.
Because of the large universe of vessels covered by the sVGP, EPA determined that requiring all
of these vessels to submit an NOI would be an extremely large administrative burden. Further,
requiring an NOI for these vessels would be of little value, because of the limited range of
discharge types and the reduced likelihood that they will introduce significant quantities of toxic
and conventional pollutants to waterways.41 However, like the VGP, EPA would have required all
vessel operators covered by the permit to comply with its requirements, including signing an
40
As previously described, Congress permanently exempted recreational vessels of all size from CWA permit
requirements in P.L. 110-288 (see “The 2008 Vessel General Permit and 2011 Draft Vessel General Permits”).
41
U.S. Environmental Protection Agency, 2014 Final Issuance of National Pollutant Discharge Eliminations System
(NPDES) Small Vessel General Permit (sVGP) for Discharges Incidental to the Normal Operation of Vessels Less than
79 Feet (sVGP) Fact Sheet, p. 14.
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sVGP Permit Authorization and Record of Inspection form and maintaining that form onboard at
all times. The terms of the sVGP would expire five years after the permit’s effective date.
EPA made several changes in the 2014 sVGP, compared with the 2011 draft permit. For example,
the final permit added a condition that accumulated bilgewater must be removed, to the extent
practicable, prior to transporting a vessel from one waterbody to another over land.
Overall, EPA estimated that the sVGP requirements could result in total annual costs for domestic
vessels ranging between $7.1 million and $16.9 million (in 2010 dollars), in the aggregate.42
Approximately 35% of these costs were associated with vessel hull maintenance, 25% with
recordkeeping and inspection, and 25% with engine and oil control BMPs. The average cost per
vessel was estimated to range from $17 per year (for vessels that already implement control
practices) to $133 per year. The estimated range depended on the number of applicable discharge
categories and baseline practices.
EPA lacks data to quantify the environmental benefits of the sVGP, but qualitatively, the agency
expected that reducing discharges incidental to the operation of small non-recreational vessels
would have two broad categories of benefits: enhanced environmental quality from reduced loads
of pollutants, and reduced risk of introducing and spreading invasive species.
As it did with the VGP, EPA acknowledged uncertainties about impacts of the sVGP, largely due
to limitations of data regarding financial and operational characteristics of affected firms and
compliance costs that firms may incur. Particularly for the smaller vessels covered by the sVGP,
EPA said that uncertainty exists for the revenue data for firms and also on the number of firms
that have vessels that could incur cost impacts. For example, EPA assumed the same range of cost
per vessel for all industry sectors, based on the best and worst case scenarios, but the agency
recognized that this simplifying assumption may be inaccurate, because some vessels may
already be implementing discharge control practices and would therefore not incur additional
costs. Despite uncertainties, EPA concluded that it is “unlikely that a significant number of firms
in the commercial fishing industry incurring material economic impacts as a result of complying
with the sVGP.” The permit was expected to have some effect on small firms, because of the very
large number of small operators, but “the exact impacts on the profitability of these small
businesses are difficult to quantify ... due to limitations of the data.”43
42
EPA did not estimate the compliance costs for foreign vessels, because their costs are not expected to have a direct
impact on U.S. firms. U.S. Environmental Protection Agency, Economic and Benefits Analysis of the Final 2014 Small
Vessel General Permit (sVGP), August 2014, p. 17.
43
Ibid., pp. 84-85.
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Appendix B. Discharges Incidental to the Normal
Operation of Military Vessels
As noted in the text of this report, discharges incidental to the normal operation of military
vessels are not subject to EPA’s VGP or the 2012 Coast Guard rule concerning ballast water
discharges. Instead, such discharges are subject to separate regulatory requirements, pursuant to
CWA Section 312(n), which Congress added to the act in 1996 (Section 325 of P.L. 104-106).
Section 312(n) requires EPA and the Department of Defense (DOD) jointly to promulgate
uniform national discharges standards (UNDS) for certain discharges incidental to the normal
operation of a vessel of the Armed Forces, unless the Secretary of Defense finds that compliance
with UNDS would not be in the national security interests of the United States. Once finalized,
the standards will be applicable to discharges from U.S. Armed Forces vessels operating in the
navigable waters of the United States, the territorial seas, and the contiguous zone.
Since enactment of these provisions, EPA and DOD have been working through a multi-stage
rulemaking process to develop the required standards. This process has already been underway
for 20 years and is likely to extend for an unknown number of additional years. First, in Phase I,
the agencies promulgated regulations in 1999 identifying 25 discharges for which it is
“reasonable and practicable” to require a marine pollution control device (MPCD). Phase I also
identified 14 discharges as not requiring control with a MPCD. These 1999 regulations are
codified at 40 C.F.R. Part 1700.
During Phase II, EPA and DOD are proposing discharge performance standards for the 25
categories of discharges identified in the 1999 rule. Phase II is occurring in three separate
rulemakings. The first set of performance standards, which addressed 11 discharges, was
published in 2014,44 and the second set of performance standards, addressing another 11
discharges, was published in October 2016.45 The third set of performance standards, which will
address the final three discharges identified in the 1999 rule—all of which involve ballast
discharges—will be published separately in a future rule.
Phase III of the UNDS rulemaking will be a DOD-only rule. It will require DOD, in consultation
with EPA and the Coast Guard, to promulgate regulations governing the design, construction,
installation, and use of MPCDs necessary to meet the performance standards covered by Phase II.
Similar to Phase II, Phase III will be promulgated in three batches. CWA Section 312(n) requires
DOD to promulgate the Phase III standards within one year of finalization of the Phase II
standards, and these regulations are to become effective upon promulgation, unless DOD
specifies another effective date.
EPA and DOD estimate that the universe of Armed Forces vessels affected by the UNDS
rulemaking is about 6,230 ships of the U.S. Navy, Army, Marine Corps, Air Force, and Military
Sealift Command. Approximately 18% of the total (1,090 vessels, including aircraft carriers,
auxiliary ships, patrol ships, and submarines) are larger than 79 feet in length. The remaining
5,140 ships, including a variety of self-propelled boats, are less than 79 feet in length. According
44
Environmental Protection Agency and Department of Defense, “Uniform National Discharge Standards for Vessels
of the Armed Forces—Phase II, Proposed rule,” 79 Federal Register 6117-6135, February 3, 2014. These proposed
standards have not been finalized.
45
Environmental Protection Agency and Department of Defense, “Uniform National Discharge Standards for Vessels
of the Armed Forced—Phase II Batch Two, Proposed rule,” 81 Federal Register 69753-69772, October 7, 2016. The
public comment on this proposal closes on December 6, 2016.
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to EPA and DOD, in developing the Phase II discharge performance standards, the agencies are
referencing the 2013 VGP and the 2014 sVGP as the baseline for each comparable discharge
incidental to the normal operation of a vessel of the Armed Forces.46
Author Contact Information
(name redacted)
Specialist in Resources and Environmental Policy
[redacted]@crs.loc.gov, 7-....
46
Ibid., pp. 69755-69756.
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