Clean Water Act Permitting and Operational Discharges from Vessels An Overview

February 2007

CONTENTS

• Clean Water Act (CWA) Permit Basics • Vessel Permit Exclusions • Court Decision • Implications • Questions & Issues to Consider 2

CWA PERMIT BASICS

For more info visit http://cfpub.epa.gov/npdes/about.cfm?program_id=0 • “Discharge of a pollutant” generally prohibited without a permit [CWA § 301(a)] • National Pollutant Discharge Elimination System (NPDES) Permits [CWA § 402] – Individual permits – General permits • State authorization 3

CWA PERMIT BASICS [Cont]

• Effluent limits [CWA § 301(b)] – Technology based [CWA § 304(b)] • • Effluent guidelines Best professional judgment (BPJ) – Water quality based [CWA § 303] • State certification (if EPA-issued) [CWA § 401] • Processing • Propose draft permit • • Public comment Issue final permit 4

VESSEL PERMIT EXCLUSIONS

• REGULATORY exclusion [40 CFR 122.3(a)] – At issue in lawsuit & subject of court decision • Excludes certain discharges incidental to the normal operation of vessels from the obligation to obtain an NPDES permit • First issued in May 1973 & largely unchanged since then • Never previously challenged 5

PERMIT EXCLUSIONS [Cont]

• STATUTORY exclusions – Stated in the CWA itself and thus unaffected by lawsuit • Vessels operating beyond 3 mile limit [CWA § 502(12)(B)] • Sewage from vessels or discharges incidental to the normal operation of vessels of the Armed Forces within the meaning of § 312 [CWA § 502(6)(A)] 6

COURT DECISION

For more info visit http://www.epa.gov/owow/invasive_species/ballast_water.html

• Rulemaking petition and denial – Concerns focused on ballast water • Litigation & outcome in U.S. District Court – March 2005: Ruling that the regulation (40 CFR 122.3(a)) excluding discharges incidental to the normal operation of a vessel from NPDES permitting exceeded the Agency’s authority under the CWA – Sept 2006: Final order vacating (repealing) the regulation in its entirety as of September 30, 2008 • Current status – Nov 2006: Gov’t files notice of appeal with 9 th Circuit 7

IMPLICATIONS

• Not just limited to those larger vessels that would be equipped with ballast tanks • Not just limited to ballast water discharges but includes other operational discharges – But does NOT affect exemptions specifically contained in CWA itself (see earlier slide) • As of Sept 30, 2008, operational discharges that had been excluded from NPDES permitting by 40 CFR 122.3(a) become unlawful unless authorized by a permit 8

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QUESTIONS TO CONSIDER

How define and categorize the universe of vessels?

• How define and categorize operational discharges and feasible control methods?

• How determine permit limits using BPJ factors?

– Age of equipment and facilities involved – Process employed; – Engineering aspects of various types of control techniques; – Process changes; – Cost of achieving effluent reduction; and – Non-water quality environmental impact (including energy requirements) 9

Questions [Cont]

• How address State WQ standards that vary reach-by-reach or State to State?

• How integrate with any applicable international or domestic requirements under statutes besides CWA?

• How issue final permits by court’s September 30, 2008 vacatur date?

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