Background

On March 30, 2005, in Northwest Environmental Advocates et al. v. Environmental Protection Agency, the U.S. District Court for Northern California ruled that the EPA lacked authority to exempt incidental discharges from the normal operation of vessels from regulation under the Clean Water Act. On September 18, 2006, the Court issued an order vacating the exemption (40 C.F.R. 122.3(a)(2 pp, 147 K, About PDF)) 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 decision in effect. As a result, EPA now regulates discharges incidental to the normal operation of certain vessels using Clean Water Act permits, including the Vessel General Permit (VGP).

On July 29, 2008, Congress passed the Clean Boating Act of 2008 (CBA). This law provides that recreational vessels shall not be subject to the requirement to obtain a Clean Water Act permit to authorize discharges incidental to their normal operation. It instead directs EPA to evaluate recreational vessel discharges, to develop appropriate management practices for the discharges and to promulgate performance standards for those management practices. The CBA then directs the U.S. Coast Guard (USCG) to promulgate regulations for the use of the management practices developed by EPA. Finally, the law requires recreational boater compliance with such practices.

Clean Water Act Amendments

Section 312(o)

Section 312(o)(2)(A) of the Clean Water Act directs EPA to "determine the discharges incidental to the normal operation of a recreational vessel for which it is reasonable and practicable to develop management practices to mitigate adverse impacts on the waters of the United States..."

EPA considered the following factors to determine what was reasonable and practicable when managing discharges from a recreational vessel:

1. The nature of the discharge
2. The environmental effects of the discharge
3. The practicability of using a management practice
4. The effect that the use of a management practice would have on the operation, capability and safety of the vessel
5. Applicable federal and state laws
6. Applicable international standards
7. The economic costs of the use of the management practice

The potential for environmental effects was primarily evaluated by considering acute and chronic toxicity of the discharge, presence of persistent and bioaccumulative substances in the discharge, cumulative impacts of multiple discharges from multiple vessels, aesthetic impacts to receiving waters and the potential for transport of aquatic nuisance species (ANS).

Section 402

The CBA states that "No permit shall be required under this Act...for the discharge that is incidental to the normal operation of a vessel, if the discharge is from a recreational vessel."

Section 502

Recreational vessels are defined as any vessel that is "manufactured or used primarily for pleasure; or leased, rented, or chartered to a person for the pleasure of that person...The term 'recreational vessel' does not include a vessel that is subject to USCG inspection that is engaged in commercial use, or carries paying passengers."