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Background
 On March 30, 2005, the U.S. District Court for the Northern District of California (in Northwest Environmental Advocates et al. v. EPA) ruled that the EPA regulation excluding discharges incidental to the normal operation of a vessel from NPDES permitting exceeded the Agency's authority under the CWA. On September 18, 2006, the Court issued an order revoking this regulation (40 C.F.R. 122.3(a)) as of September 30, 2008. EPA appealed the District Court's decision, and on July 23, 2008, the Ninth Circuit upheld the decision, leaving the September 30, 2008 vacatur date in effect. In response to this Court order, EPA developed two proposed permits to regulate discharges from vessels. The district court subsequently extended the date of vacatur to December 19, 2008.
On July 29, 2008, Senate bill S. 2766 ("the Clean Boating Act of 2008"(PDF)) (4 pp, 55K) was signed into law (P.L. No. 110-288). This law provides that recreational vessels shall not be subject to the requirement to obtain an NPDES permit to authorize discharges incidental to their normal operation. It instead directs EPA to evaluate recreational vessel discharges, develop management practices for appropriate discharges, and promulgate performance standards for those management practices. It then directs the Coast Guard to promulgate regulations for the use of the management practices developed by EPA and requires recreational boater compliance with such practices. As a result of this law, EPA will not finalize the previously proposed Recreational Vessel General Permit.
On July 30, 2010, President Obama signed P.L.111-215 (Senate Bill S. 3372 (PDF)) (1 pp, 157K) into law. This law amends P.L. 110-299 (Senate bill S. 3298 (PDF)) (3 pp, 32K), which generally imposes a moratorium during which time neither EPA nor states may require NPDES permits for discharges incidental to the normal operation of commercial fishing vessels and other non-recreational vessels less than 79 feet. As a result of P.L. 110-299 (PDF) (3 pp, 32K), the VGP does not cover vessels less than 79 feet or commercial fishing vessels, unless they have ballast water discharges. P.L. 111-215 extended the expiration date of the moratorium from July 31, 2010 to December 18, 2013.
In addition, P.L. 110-299 directs EPA to conduct a study of vessel discharges and issue a report to Congress. EPA finalized this Report to Congress, entitled Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and Other Non-Recreational Vessels Less Than 79 Feet" in August 2010.
On December 20, 2012, President Obama signed the Coast Guard and Maritime Transportation Act of 2012 (H.R. 2838 (PDF)) (48 pp, 217K) which extends the expiration date of the moratorium from December 18, 2013 to December 18, 2014.
After excluding the vessels addressed by the two new laws (P.L. No. 110-288 and P.L. No. 110-299) discussed above, EPA estimates that approximately 61,000 domestically flagged commercial vessels and approximately 8,000 foreign flagged vessels may be affected by this permit.
VGP Settlement Agreements
EPA previously reached settlement (PDF)
(39 pp, 2.95MB) with several environmental groups and the State of Michigan regarding their legal challenge to the 2008 VGP.
Highlights of the settlement include the following:
- EPA agreed to include in the next Draft VGP numeric concentration-based effluent limits for discharges of ballast water expressed as organisms per unit
of ballast water volume. The current VGP, issued in 2008, includes a full suite of best management practices for ballast water discharges that reflect the
best available technology at the time of permit issuance. Click here for more details about the current VGP's ballast water discharge requirements.
- The agreement calls for EPA to propose the next draft VGP by November 30, 2011, and issue the final VGP by November 30, 2012, a full year before the
current permit is scheduled to expire. Issuing the permit well in advance of the current permit's expiration will provide the regulated community with time to familiarize itself with the new permit and take appropriate measures to come into compliance with new requirements.
- EPA agreed to take several actions to improve the VGP CWA section 401 certification process.
- The settlement agreements have been modified to extend the date for issuing the final VGP to March 29, 2013.
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