Clean Water Act Permitting and Operational Discharges from Vessels An Overview February 2007

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

3 CWA PERMIT BASICS For more info visit “Discharge of a pollutant” generally prohibited without a permit [CWA § 301(a)] “Discharge of a pollutant” generally prohibited without a permit [CWA § 301(a)] National Pollutant Discharge Elimination System (NPDES) Permits [CWA § 402] National Pollutant Discharge Elimination System (NPDES) Permits [CWA § 402] –Individual permits –General permits State authorization State authorization

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

5 VESSEL PERMIT EXCLUSIONS REGULATORY exclusion [40 CFR 122.3(a)] 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 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 First issued in May 1973 & largely unchanged since then Never previously challenged Never previously challenged

6 PERMIT EXCLUSIONS [Cont] STATUTORY exclusions STATUTORY exclusions –Stated in the CWA itself and thus unaffected by lawsuit Vessels operating beyond 3 mile limit [CWA § 502(12)(B)] 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)] 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)]

7 COURT DECISION For more info visit Rulemaking petition and denial Rulemaking petition and denial –Concerns focused on ballast water Litigation & outcome in U.S. District Court 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 Current status –Nov 2006: Gov’t files notice of appeal with 9 th Circuit

8IMPLICATIONS Not just limited to those larger vessels that would be equipped with ballast tanks 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 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 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

9 QUESTIONS TO CONSIDER How define and categorize the universe of vessels? How define and categorize the universe of vessels? How define and categorize operational discharges and feasible control methods? How define and categorize operational discharges and feasible control methods? How determine permit limits using BPJ factors? 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)

10 Questions [Cont] How address State WQ standards that vary reach-by-reach or State to State? 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 integrate with any applicable international or domestic requirements under statutes besides CWA? How issue final permits by court’s September 30, 2008 vacatur date? How issue final permits by court’s September 30, 2008 vacatur date?