Clean Water Act: 110th Congress Legislation on Discharges from Recreational Boats

Congressional research reportJan 13, 2009

Ask Donna

What actually matters in this document.

Text

ȱȱǱȱŗŗŖȱȱȱȱ

ȱȱȱȱ

ȱȱ

ȱȱȱȱȱ¢ȱ

¢ȱŗřǰȱŘŖŖşȱ

ȱȱȱ

ŝȬśŝŖŖȱ

ǯǯȱ

ŘŘŞŝŞȱ

ȱȱȱ

Prepared for Members and Committees of Congress

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱȱ

¢ȱ

The Environmental Protection Agency (EPA) is required to develop a regulatory response to a

2006 federal court ruling that vacated a long-standing EPA rule. That rule had exempted

discharges associated with the normal operation of vessels from permit requirements of the Clean

Water Act. Concern that this ruling could require millions of recreational boaters to obtain permits

led to the introduction of legislation in the 110th Congress to exempt these and other types of

vessels from water quality regulation. This report discusses background to the issue and bills

introduced in the 110th Congress in response, two of which were passed by Congress in July 2008

(S. 2766 and S. 3298). The enacted measures exempted recreational vessels from permit

requirements (P.L. 110-288) and delayed permit requirements for many other but not all vessels

(P.L. 110-299). EPA finalized a permit for the remaining vessels on December 18, 2008.

ȱȱȱ

ȱȱǱȱŗŗŖ ȱȱȱ ȱȱȱȱ

Introduction ..................................................................................................................................... 1

Background: Clean Water Act Requirements .................................................................................. 2

Legislative Proposals and Congressional Response........................................................................ 3

EPA’s Response: General Permits for Vessels ................................................................................. 5

The Proposed General Permits.................................................................................................. 5

The Final Vessel General Permit ............................................................................................... 6

Author Contact Information ............................................................................................................ 7

ȱȱȱ

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱȱ

In the 110th Congress, legislation concerning the applicability of certain environmental regulatory

requirements to recreational and other types of boats was introduced. Two bills are titled the

Clean Boating Act of 2008 (S. 2766 and H.R. 5949). Legislation titled the Recreational Boating

Act of 2007 also was introduced (S. 2067 and H.R. 25501). Two other bills were the Vessel

Discharge Evaluation and Review Act (S. 2645 and H.R. 55942). Two measures concerned just

with non-recreational boats were S. 3298 and H.R. 6556. As discussed in this report, Congress

passed two of these bills, S. 2766 and S. 3298, on July 22, 2008, and President Bush subsequently

signed them into law.

These bills were intended to address an issue that has arisen in implementation of the Clean Water

Act (CWA). In 2006, a federal court ordered the Environmental Protection Agency (EPA) to

revise a CWA regulation that currently exempts discharges from the normal operation of all

vessels from the act’s permit requirements.3 The bills sought to exempt an estimated 13 million

recreational and other vessels from new EPA rules promulgated in response to the court order. A

federal appeals court upheld the district court’s ruling the day after Congress acted on S. 2766 and

S. 3298.4

The federal court 2006 order reversed EPA policy in effect since 1973, in a rule that excluded

discharges incidental to the normal operation of vessels from CWA permitting requirements. The

district court’s order revoked the regulatory exemption as of September 30, 2008. The

government appealed the court’s order, but while waiting for a ruling, on June 17, 2008, EPA

proposed two draft CWA permits to respond to the court’s mandate. Although the focus of the

legal challenge was principally to EPA’s permitting exemption for ballast water discharges from

vessels,5 the court’s ruling—and its mandate to rescind the regulatory exemption—also applied

fully to other types of vessel discharges that are covered by the exemption, such as graywater and

bilge water.6 Barring judicial or legislative relief, EPA would have been required to promulgate a

CWA permitting program to comply with the court’s mandate by September 30. As discussed

below, enactment of S. 2766 and S. 3298 relieved recreational boats and many but not all other

vessels from these requirements. Further, on August 31, the federal district court approved EPA’s

S. 2067 includes several stylistic and formatting differences from H.R. 2550, but the bills are similar enough that they

are considered together in this report.

These bills are not identical, but they are substantially similar and are discussed together in this report.

Northwest Environmental Advocates v. EPA, No. C 03-05760 SI (N.D.Cal. September 18, 2006).

Northwest Environmental Advocates v. U.S. Environmental Protection Agency, No. 03-74795, EPA No. 03-5760, CA

9, July 23, 2008.

Ballast water is stored in tanks on large ships such as tankers and cruise ships to provide stability. It is essential to the

proper functioning of ships (especially cargo ships), because the water that is taken in compensates for changes in the

ship’s weight as cargo is loaded or unloaded, and as fuel and supplies are consumed. However, ballast water discharges

typically contain a variety of biological materials, including plants, animals, viruses, and bacteria. These materials often

include non-native, nuisance, exotic species that can cause extensive ecological and economic damage to aquatic

ecosystems. For information, see CRS Report RL32344, Ballast Water Management to Combat Invasive Species, by

(name redacted).

Graywater is wastewater from the sinks, showers, galleys, laundry, and cleaning activities aboard a ship. Bilge water

is water that collects in the lowest inner part of the ship’s hull. It is frequently contaminated with oil and other

lubricants from the engine room.

ȱȱȱ

ŗȱ

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱȱ

request to delay the court’s order until December 19, 2008, and EPA finalized a permit for vessels

subject to a permit requirement on December 18.

Ǳȱȱȱȱȱ

The Clean Water Act is the principal federal law concerned with pollutant discharges to the

nation’s surface waters, including rivers and streams, lakes, estuaries, and coastal waters. Section

301(a) of this act provides that “the discharge of any pollutant by any person shall be unlawful”

unless the discharge is in compliance with certain other sections of the act. The CWA defines

“discharge of a pollutant” as “(A) any addition of any pollutant to navigable waters from any

point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean

from any point source other than a vessel or other floating craft” (33 U.S.C. § 1362(12)). Various

courts have held that biological organisms, such as bacteria (e.g., fecal coliform), algae, dead fish,

live fish, fish remains, and plant materials are considered pollutants under this definition. A point

source is a “discernible, confined and discrete conveyance” and includes a “vessel or other

floating craft” (33 U.S.C. § 1362(14)). However, discharges of sewage from vessels are expressly

excluded from the definition of “pollutant” (33 U.S.C. § 1362(6)(A)), and sewage discharges

from vessels are regulated under a separate provision of the act that concerns marine sanitation

devices (33 U.S.C. § 1322). The term “discharge incidental to the normal operation of a vessel” is

defined in this provision (33 U.S.C. § 1322(a)(12)).

One way a pollutant may be lawfully discharged without violating the section 301 prohibition is

to obtain a National Pollutant Discharge Elimination System (NPDES) permit (33 U.S.C. §

1342). Under section 402(a), EPA or a qualified state may “issue a permit for the discharge of any

pollutant, or combination of pollutants, notwithstanding section 301(a)” upon meeting certain

conditions required by the act (33 U.S.C. § 1342(a)). Discharging pollutants into waters of the

United States without a permit, or in violation of the terms of a permit, can subject a source to the

act’s enforcement provisions, which include fines and penalties (33 U.S.C. § 1319).

In 1973, EPA promulgated a regulation that excluded discharges incidental to the normal

operation of vessels from NPDES permitting requirements. That rule, at 40 CFR §122.3(a),

excludes from permitting “any discharge of sewage from vessels, effluent from properly

functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge

incidental to the normal operation of a vessel.” The exemption applies to vessels of all sizes,

whether motorized or not. At the time, EPA stated its belief that “[T]his type of discharge

generally causes little pollution and exclusion of vessel wastes from the permit requirements will

reduce administrative costs drastically.”7

This long-standing EPA regulation was subject to legal challenge in the U.S. District Court for the

Northern District of California. In 2005 the court found that Congress had directly expressed its

intention that discharges from vessels be regulated under the CWA, and that the regulation at

issue contradicted that intention. In September 2006 the court issued a final order that vacated

U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System,” 38 Federal Register 98,

May 22, 1973, p. 13528. Although this regulatory exemption from NPDES permitting includes discharges of sewage

from vessels, as discussed previously, these discharges are regulated pursuant to CWA Section 312 and regulations at

40 CFR Part 140, which do not use a permitting program. The federal court’s order vacating 40 CFR § 122.3(a) did not

affect EPA’s method of regulating sewage discharges from vessels.

ȱȱȱ

Řȱ

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱ

(revoked) the regulatory exclusion in 40 CFR §122.3(a) as of September 30, 2008.8 The district

court rejected EPA’s contention that Congress had previously acquiesced in exempting the

“normal operation” of vessels from CWA permitting and disagreed with EPA’s argument that the

court’s two-year deadline creates practical difficulties for the agency and the affected industry.

Under the district court’s ruling, which was upheld on July 23, 2008, after September 30,

discharges of pollutants incidental to the normal operation of a vessel that had formerly been

exempted from NPDES permitting are subject to the prohibitions in CWA section 301 against the

discharge of a pollutant without a permit. Although EPA appealed the court’s decision to the

Ninth Circuit Court of Appeals, it also initiated steps seeking public comment on permitting of

discharges that are incidental to the normal operation of ships. On June 17, EPA proposed two

NPDES permits in response to the court’s order (discussed below).9 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.

ȱȱȱȱȱ

Several bills in the 110th Congress sought to statutorily exempt vessels from any CWA permitting

requirement that EPA might adopt in response to the federal district court’s order. They reflected

four approaches: (1) modifying a CWA definition to exempt discharges from recreational vessels;

(2) modifying the CWA to exempt recreational vessel discharges from permitting and directing

EPA to issue performance standards for discharges incidental to the normal operation of vessels;

(3) directing the Coast Guard to issue national performance standards for such discharges, but

exempting recreational and certain commercial vessels; and (4) temporarily exempting fishing

and some commercial vessels from CWA permitting and requiring a study of impacts of vessel

discharges.

The first approach was reflected in S. 2067 and H.R. 2550. These bills proposed to amend the

definitions provision of the CWA (Section 502, 33 U.S.C. § 1362) to define a “recreational

vessel” and to detail the types of discharges from such vessels that would not be defined as

pollutants under the act, and therefore would be exempt from permitting. Under these bills, the

term “recreational vessel” is defined to mean a vessel that is “manufactured for operation, or

operated, primarily for recreational purposes,” or that is “leased, rented, or chartered to an

individual for recreational purposes.”

S. 2766 and H.R. 5949, reflecting the second approach, contained a generally similar provision

defining discharges incidental to the normal operation of recreational vessels that would be

statutorily exempt from permitting. In defining “recreational vessel,” these bills included boats

manufactured or used primarily for pleasure, or boats leased, rented, or chartered to a person for

the pleasure of that person. These bills proposed to amend the permitting provision of the CWA

(Section 402, 33 U.S.C. § 1342), not the definitions provision. Unlike S. 2067 and H.R. 2550,

these bills stated that the term “recreational vessel” does not include a vessel that is subject to

See footnote 3.

U.S. Environmental Protection Agency, “Draft National Pollutant Discharge Elimination System (NPDES) General

Permits for Discharges Incidental to the Normal Operation of Vessels,” 73 Federal Register 117, June 17, 2008, pp.

34296-34349.

ȱȱȱ

řȱ

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱ

Coast Guard inspection and that is “engaged in commercial use” or “carries paying passengers”

(e.g., ferries or cruise ships).

S. 2766 and H.R. 5949 (unlike S. 2067 and H.R. 2550) would have added provisions concerning

management practices for discharges from recreational vessels. As a result of these provisions,

while recreational vessels (as defined in the legislation) would be exempt from permitting

requirements, they could become subject to regulations mandating management practices to

control discharges.

Section 4 of S. 2766 and H.R. 5949 directs EPA, in consultation with the Coast Guard, the

Department of Commerce, and interested states to develop management practices for discharges

other than sewage from such vessels. It identifies several factors to be considered by EPA, such as

the nature and environmental effects of the discharge, the practicability of using a management

practice, applicable federal and state laws and international standards, and cost. After developing

management practices, EPA would be required to promulgate federal standards of performance

for each. These standards could distinguish among classes, types, and sizes of recreational

vessels, and also between new and existing vessels. The standards could allow for waivers “as

necessary or appropriate to a particular class, type, age, or size of vessel.” Finally, the Coast

Guard would be required to promulgate regulations incorporating the EPA standards of

performance. After the effective date of these regulations, a recreational vessel could neither

operate nor discharge in violation of the regulations.

A third approach to the issue was reflected in S. 2645 and H.R. 5594, which proposed to exempt

recreational and certain other vessels from regulation. Unlike the previously discussed bills, these

measures would have given primary responsibility to address vessel discharges to the Coast

Guard, not EPA. The legislation did not include amendments to the CWA, but it would in part

have amended the Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA, 16

U.S.C. § 4701 et seq.). Under NANPCA, the Coast Guard is responsible for developing and

implementing a program to prevent the unintentional introduction and dispersal of nuisance

aquatic species into U.S. waters from ship ballast water.

S. 2645 and H.R. 5594 would have directed the Coast Guard to study and report on vessel

discharges that are incidental to the normal operation of vessels, other than aquatic nuisance

species, including types of discharges, the nature and extent of potential effects on human health

and the environment, and an analysis of control technologies or best management practices.

Based on the study, the Coast Guard was to promulgate and enforce uniform national discharge

standards. S. 2645 and H.R. 5594 would have suspended any permit requirement for discharges

incidental to the normal operation of vessels promulgated under any other provision of law (i.e.,

the legislation would supersede any CWA permits issued by EPA). After promulgation of the

Coast Guard standards, states would be preempted from establishing separate laws or rules, but

states could prohibit such discharges in areas where needed for greater environmental protection.

Under S. 2645 and H.R. 5594, the following discharges incidental to the normal operation of

vessels would be exempt from the new Coast Guard rules: discharges from recreational vessels;10

discharges from commercial vessels less than 79 feet in length; discharges from fishing vessels

S. 2645 would have limited the exemption to recreational vessels less than 79 feet in length; H.R. 5594 had no such

limit.

ȱȱȱ

Śȱ

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱȱ

and fish tender vessels (H.R. 5594 only); discharges of aquatic nuisance species in ballast water

that is subject to NANPCA; and certain other specified discharges.

A fourth set of proposals was reflected in S. 3298 and H.R. 6556, addressing non-recreational

vessels. These identical bills would have provided a two-year moratorium on NPDES

requirements for fishing vessels of all sizes (28,875 vessels, according to EPA) and vessels less

than 79 feet in length (rather than the full exemption proposed in S. 2645 and H.R. 5594) and

would have required EPA to study and report to Congress on impacts of discharges incidental to

the operation of vessels (other than sewage and ballast water).

The Senate Environment and Public Works Committee approved S. 2766 on May 21, 2008

(S.Rept. 110-398). The House Transportation and Infrastructure Committee approved H.R. 5949

on May 15, 2008 (H.Rept. 110-765). After the two committees’ action on these bills, focusing just

on recreational boats, attention turned to impacts of the court’s ruling on non-recreational vessels.

On June 12, a House Transportation subcommittee held a hearing on vessel discharge issues,

including whether commercial as well as recreational boats should be exempted from permit

requirements.

On July 22, 2008, the Senate and House passed two of these bills. They passed S. 2766, to

exempt recreational boats from CWA permit requirements and require EPA to develop

management practices for discharges other than sewage that are incidental to the normal operation

of such vessels (signed into law July 29, P.L. 110-288). Congress also passed S. 3298, providing a

two-year permit moratorium for fishing vessels and other vessels less than 79 feet in length and

requiring EPA to evaluate the impact of discharges other than sewage and ballast water that are

incidental to the normal operation of vessels (signed July 31, P.L. 110-299). EPA is to submit a

report to Congress with its findings within 15 months of enactment.

ȂȱǱȱ ȱȱȱȱ

On June 17, while waiting for the court of appeals or Congress to provide relief from the district

court’s order, EPA proposed two CWA permits in response to the district court’s order.11 A general

permit covers multiple facilities within a specific category for a specific period of time (not to

exceed five years), after which it expires. Categories covered by general permits have 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, EPA believed that it made administrative sense to

use general permits, rather than individual permits. EPA proposed general permits that would

apply in all states; generally, EPA authorizes states to administer the issuance and enforcement of

NPDES permits, in lieu of EPA. In this case, however, EPA will be the permitting entity.

ȱȱ ȱȱ

As proposed, one permit (the Recreational General Permit, or RGP) would apply to recreational

vessels less than 79 feet in length, an estimated 13 million domestic boats. Discharges incidental

to the normal operation covered by the draft permit include toxic (mainly copper from antifouling paints and detergents) and conventional pollutants from deck runoff, bilgewater, non11

See footnote 9.

ȱȱȱ

śȱ

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱȱ

contact engine coolant and small boat engine wet exhaust, leachate from anti-foulant hull

coatings, and fuel tank overflows. The permit would require recreational boat owners to use

several management practices intended to minimize or reduce pollutants of concern, such as use

of phosphorus-free soap, minimizing the discharge and transfer of visible organisms that could

spread invasive species, and managing on-board trash. EPA estimated that the maximum national

compliance cost would be $88 million, or $26 per boat per year. Enactment of S. 2766 eliminated

the need for this permit.

The second proposed permit (the Vessel General Permit, or VGP) applies to commercial and large

recreational vessels. This is a more complex permit than the RGP, because it covers eight large

categories of vessels. EPA identified 28 types of waste streams from the normal operation of these

vessels (some are not applicable to all vessel types). The permit proposed that most would be

controlled by specific best management practices, many of which are already practiced. Some

categories, such as cruise ships, would be subject to more detailed requirements. Vessels would

be subject to certain monitoring and annual reporting requirements. EPA estimated that 98,645

vessels (including about 7,900 foreign flagged vessels) would be subject to this permit. However,

enactment of S. 3298 temporarily relieved nearly 29,000 fishing and large recreational vessels of

the need to comply with this permit, but commercial vessels larger than 79 feet (tank and freight

ships and barges, and cruise ships) still must comply with the final permit.

ȱȱȱ ȱȱ

On December 18, EPA finalized the VGP for an estimated 69,000 vessels not affected by

enactment of S. 2766 or S. 3298.12 It applies to pollutant discharges 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 applies to discharges into waters of the United States in all states and

territories, extending to the reach of the three-mile territorial limit. The permit is effective

December 19, 2008. However, on the same day, the federal district court granted an EPA motion

to delay vacatur of the existing exclusion in 40 CFR § 122.3(a) until February 6, 2009. Thus, the

effective date remains December 19, but regulated sources need not comply with terms of the

permit until February 6, 2009.

In the final permit, EPA identified 26 types of waste streams from the normal operation of

covered vessels (some are not applicable to all vessel types). The types of pollutant discharges

subject to the permit include aquatic nuisance species, nutrients, pathogens, oil and grease,

metals, and pollutants with toxic effects. As in the proposed permit, most discharges are to be

controlled by specific best management practices, many of which are already in use. Some

categories, such as cruise ships, would be subject to more detailed requirements for discharges

such as graywater and pool and spa water. Monitoring, recordkeeping, and reporting requirements

apply.

Procedurally, vessels larger than 79 feet or more than 300 gross tons (50,000 domestic and

foreign vessels) are required to submit a Notice of Intent by September 19, 2009, to be covered

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. The text of the permit, detailed fact sheet, and economic and environmental benefit analysis documents are

available at http://cfpub.epa.gov/npdes/home.cfm?program_id=350.

ȱȱȱ

Ŝȱ

ȱȱǱȱŗŗŖ ȱȱȱȱȱȱȱ

by the permit. Smaller vessels would be automatically covered. There are no permit fees.

Projected compliance costs (including paperwork requirements) range from a low of $8.9 million

to $23.0 million annually; they vary based on assumptions of vessel populations affected and the

number of instances in which incremental costs will be incurred.

ȱȱ ȱ

(name redacted)

Specialist in Resources and Environmental Policy

[redacted]@crs.loc.gov, 7-....

ȱȱȱ

ŝȱ

EveryCRSReport.com

The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the

Library of Congress, charged with providing the United States Congress non-partisan advice on

issues that may come before Congress.

EveryCRSReport.com republishes CRS reports that are available to all Congressional staff. The

reports are not classified, and Members of Congress routinely make individual reports available to

the public.

Prior to our republication, we redacted names, phone numbers and email addresses of analysts

who produced the reports. We also added this page to the report. We have not intentionally made

any other changes to any report published on EveryCRSReport.com.

CRS reports, as a work of the United States government, are not subject to copyright protection in

the United States. Any CRS report may be reproduced and distributed in its entirety without

permission from CRS. However, as a CRS report may include copyrighted images or material from a

third party, you may need to obtain permission of the copyright holder if you wish to copy or

otherwise use copyrighted material.

Information in a CRS report should not be relied upon for purposes other than public

understanding of information that has been provided by CRS to members of Congress in

connection with CRS' institutional role.

EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.