EPA created the NPDES vessels incidental discharge permitting program in response to a court decision vacating EPA’s longstanding permit exclusion of discharges incidental to the normal operation of a vessel. Additional information on that court decision, legislation, and EPA activities to develop and implement the program are provided below.
- Vessels Incidental Discharge Litigation
- Vessels Incidental Discharge Legislation
- 2010 Vessels Report to Congress
- Studies to Improve Our Understanding of Ballast Water Discharges
- Environmental Technology Verification (ETV) Protocol for Ballast Water Treatment Technology
Vessels Incidental Discharge Litigation
The NPDES permitting of incidental discharges from vessels came about as a result of litigation:
- March 30, 2005 - The U.S. District Court for the Northern District of California (in Northwest Environmental Advocates et al. v. EPA) rules that the EPA regulation, [40 CFR (Code of Federal Regulations, Title 40) Part 122.3(a) (PDF)(1 pp, 146 K, About PDF) - exclusions excluding discharges incidental to the normal operation of a vessel from NPDES permitting], exceeds the Agency's authority under the CWA.
- September 18, 2006 - The Court issues an order revoking the regulatory provision excluding incidental discharges from permitting as of September 30, 2008. EPA appeals this decision.
- July 23, 2008 - the Ninth Circuit upholds the court order, leaving the September 30, 2008 vacatur date in effect (which the district court subsequently extended to December 19, 2008).
Vessels Incidental Discharge Legislation
Several subsequently enacted laws affected the applicability of that court decision:
- Public law (P.L.) 110-288 (PDF) (4 pp, 134 K, About PDF) - signed into law on July 29, 2008, provides that recreational vessels shall not be required to obtain an NPDES permit for 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 U.S. Coast Guard (USCG) to promulgate regulations for the use of the management practices developed by EPA and requires recreational boater compliance with such practices. (Senate bill S. 2766 - "the Clean Boating Act of 2008").
- P.L. 110-299 (PDF)(3 pp, 132 K, About PDF) - signed into law on July 31, 2008, and 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, other than for ballast water, until July 31, 2010. 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 in August 2010. (Senate bill S. 3298).
- Several bills after P.L. 110-299 extended the NPDES permitting moratorium:
- P.L. 111-215 (PDF)(7 pp, 140 K, About PDF) - signed into law on July 30, 2010, extends the moratorium to December 18, 2013. (Senate bill S. 3372).
- P.L. 112-213 (PDF) (48 pp, 217 K, About PDF) - signed into law on December 20, 2012. Section 703 extends the moratorium to December 18, 2014. (House of Representatives bill H.R. 2838).
- P.L. 113-281 (PDF)(44 pp, 289 K, About PDF) - signed into law on December 18, 2014. Section 602 extends the moratorium to December 18, 2017. (Senate bill S. 2444 - "the Howard Coble Coast Guard and Maritime Transportation Act of 2014").
- P.L. 115-100 (PDF) (1 pg, 196 K, About PDF)- signed into law on January 3, 2018 extends the moratorium to January 19, 2018 (Senate bill S. 2273).
- Senate bill S. 140 (PDF) (175 pp, 566 K, About PDF)- Title IX, Vessel Incidental Discharge Act (VIDA), of the Frank LoBiondo Coast Guard Authorization Act of 2018, signed into law on December 4, 2018, restructures regulation of vessel incidental discharges through the phase out of the provisions of the VGP and the establishment of EPA National Standards of Performance (NSPs). In addition, the USCG is responsible for developing regulations to implement, ensure compliance, and enforce those NSPs. This law also makes the permitting moratorium permanent for incidental discharges other than ballast water from small vessels and commercial fishing vessels.
2010 Vessels Report to Congress
- Report to Congress: Study of Discharges Incidental to Normal Operation of Commercial Fishing Vessels and Other Non-Recreational Vessels Less than 79 Feet (Final) – The study found that some incidental discharges from commercial fishing vessels and other non-recreational vessels less than 79 feet may have the potential to impact the aquatic environment and/or human health.
Studies to Improve Our Understanding of Ballast Water Discharges
The EPA and the USCG jointly commissioned two scientific studies to better inform EPA’s understanding of ballast water discharges. EPA considered the results of these studies in developing the vessels incidental discharge permitting program.
- Assessing the Relationship between Propagule Pressure and Invasion Risk in Ballast Water- A National Academy of Sciences National Research Council (NAS) led study to provide technical advice to EPA and USCG to help inform the derivation of numeric limits for living organisms in ballast water.
- Density Matters: Review of Approaches to Setting Organism-Based Ballast Water Discharge Standards– A 2010 EPA background paper to inform EPA and USCG efforts to derive environmentally protective numeric ballast water discharge limits under their respective regulatory programs.
- Efficacy of Ballast Water Treatment Systems: a Report by the EPA Science Advisory Board (SAB)– An SAB report evaluating the status of ballast water treatment technologies. The July 2011 report found that systems exist to meet the International Maritime Organization (IMO) standard, and some of those systems may achieve a limit 10 times the IMO standard. However, due to the detection limitations of current monitoring technology and approaches, the SAB could not definitively determine whether systems could meet this more stringent limit
Environmental Technology Verification (ETV) Protocol for Ballast Water Treatment Technology
- Generic Protocol for the Verification of Ballast Water Treatment Technology (September 2010) – EPA developed this protocol in cooperation with the USCG. It evaluates the performance characteristics of commercial-ready ballast water treatment technologies with regard to specific verification factors, including biological treatment performance, predictability/reliability, cost, environmental acceptability, and safety for land-based testing facilities. Ballast water treatment systems that perform well using this protocol will have a reasonable chance of performing well; although, shipboard trials are also necessary to adequately assess shipboard technology performance.