LegiStorm

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.