Last-Minute Delay in Vessel Water Regulations
Waterways Journal article (12/29/08) by David Murray
See partial article on WJ website.

On December 19—the very day that new water discharge regulations were set to take effect for all towing vessels over 79 feet long—a federal judge granted an order delaying the new rules until February 6, 2009.

That means that vessel owners will have until that date to get into compliance with the new Vessel General Permit issued by the Environmental Protection Agency.

The regulation itself is the “permit.” Vessels will not have to apply for an actual physical permit, but will have to comply with its requirements, including keeping records of all discharges aboard each vessel. Vessels less than 79 feet long will be exempt for two years while the EPA studies vessel discharges.

The delaying order was issued by Judge Susan Illston of the U.S. Court of Appeals, Ninth Circuit in response to an emergency motion filed December 18 by the Environmental Protection Agency and the Shipping Industry Ballast Water Coalition. The American Waterways Operators is a founding member of the coalition.

That court had ruled on March 30, 2005, in response to a suit brought by environmental groups, that the EPA had no authority to exempt towing vessels from the Clean Water Act’s National Pollutant Discharge Elimination System. The towing industry had been exempt from the CWA’s provisions since 1973. Instead, the Coast Guard had been regulating ballast water and other discharges using other laws and rules.

The court ordered the EPA to devise new reporting and control regimes under the CWA.

The EPA and its supporters, including the SIBWC, have consistently argued in court that the Clean Water Act is not the right tool to regulate ballast water.

But the EPA went ahead with preparations for the new regulations even while pursuing its appeal. It is modeling the new regulations as closely as possible on existing Coast Guard regulations for ballast water and other discharges.

Threat of “Citizen” Lawsuits

The postponement was the top news in the AWO’s December 19 newsletter. The AWO warned that “citizen” lawsuits filed by environmental groups and their lawyers are a real possibility after the exemption is lifted on February 6.

The AWO supported the delay in part to ask for clarification on a number of important matters. It has convened a working group to develop recommended practices for controlling tugboat, towboat and barge discharges.

For the final permit, the EPA adopted several measures advocated by AWO, including a ruling that barges not already required to have spill rails will not have to install them. The agency allowed boats that make many voyages each day to allow daily vessel inspections, instead of requiring a separate inspection for each “voyage”; the AWO had asked for weekly inspections. Discharge records will have to be kept on board the vessels instead of shoreside, an issue that the AWO said it will “revisit” with the EPA.

The agency did not adopt AWO’s recommendation to let barge owners file Notice of Intents for whole fleets, instead of each individual vessel.

The final rule is expected to be posted in the Federal Register in early January.

Patchwork of State Rules

If the threat of citizen lawsuits isn’t bad enough, towing operators will be faced with a nightmare patchwork of differing discharge requirements from state to state beginning on February 6.

Under a process called 401 certification, states were asked to certify that the new regulations wouldn’t make their water quality worse. As they were free to do, 25 states chose to add conditions to make the discharge regulations stricter in their states. Many have differing targets. New York and Connecticut, for example, propose no gray water discharges after 2012, while Illinois and Michigan prohibit all gray water, beginning immediately.

Top Priority In Next Congress

The AWO has consistently argued for what it calls “federal pre-emption,” so that towing companies only have one set of regulations to worry about, instead of a changing patchwork that differs from state to state.

“AWO continues to be deeply concerned that the NPDES program, which was developed to control water pollution from fixed, land-based facilities, is an extremely poor fit to regulate discharges from mobile sources like vessels,” the group said in its newsletter. It promised to make relief from the new discharge regulations its top legislative priority in the 111th Congress.

For more information, including a list of the states that added conditions to the VGP, visit the AWO site, www.americanwaterways.com, and read the newsletter.