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

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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 ^th
led to the introduction of legislation in the 110 Congress to exempt these and other types of
vessels from water quality regulation. This report discusses background to the issue and bills ^th
introduced in the 110 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.

Introduc tion ..................................................................................................................................... 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

In the 110^th 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 ¹
Act of 2007 also was introduced (S. 2067 and H.R. 2550). Two other bills were the Vessel ²
Discharge Evaluation and Review Act (S. 2645 and H.R. 5594). 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 ³
vessels from the act’s permit requirements. 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 ⁴
S. 3298.
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 ⁵
vessels, 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 ⁶
bilge water. 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

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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.

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 ⁷
reduce administrative costs drastically.”
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

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

Several bills in the 110^th 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

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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 ¹⁰
vessels would be exempt from the new Coast Guard rules: discharges from recreational vessels;
discharges from commercial vessels less than 79 feet in length; discharges from fishing vessels

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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.

On June 17, while waiting for the court of appeals or Congress to provide relief from the district ¹¹
court’s order, EPA proposed two CWA permits in response to the district court’s order. 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.
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 anti-
fouling paints and detergents) and conventional pollutants from deck runoff, bilgewater, non-

¹¹^Se^e^f^ootno^te^9.

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.
On December 18, EPA finalized the VGP for an estimated 69,000 vessels not affected by ¹²
enactment of S. 2766 or S. 3298. 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

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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.
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