FACT SHEET  SEQ CHAPTER \h \r 1 

District Court Decision Vacating the Federal Regulation Excluding
Discharges Incidental to Normal Vessel Operations from Clean Water Act
Permitting as of September 30, 2008

How did the lawsuit get started and what is it about?  

In January 1999, a number of interested parties submitted a rulemaking
petition to EPA asking the Agency to repeal its long-standing regulation
at 40 C.F.R. 122.3(a) that excludes certain discharges incidental to the
normal operation of vessels, including ballast water, from the 
requirement to obtain a National Pollutant Discharge Elimination System
(NPDES) permit under the Clean Water Act (CWA).  The petition seeking
repeal expressed concern over discharges of ships’ ballast water
containing invasive species and other matter.  In September 2003, EPA
denied the petition.  Among its bases for denial, the Agency determined
that actions by the federal government under other statutes specific to
ballast water were likely to be more effective and efficient in
addressing the concerns raised in the petition than reliance on NPDES
permits.  The denial also noted that the regulation had existed
unchallenged since its initial issuance in May 1973, and that
Congressional enactment of subsequent statutory schemes and amendments
indicated Congress was aware of, and accepted, the regulatory exclusion.
 Following EPA’s denial decision, several groups filed a lawsuit in
December 2003 in the U.S. District Court for the Northern District of
California (Northwest Environmental Advocates et al. v. EPA, No. CV
03-05760 SI).

What was the court’s ruling?  

On March 30, 2005, the District Court 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.  In
subsequent proceedings before the Court, EPA argued that any relief
granted by the Court should be limited to ballast water matters alone. 
However, on September 18, 2006, the Court issued an order vacating
(revoking) the regulatory exclusions at 40 C.F.R. 122.3(a) as of
September 30, 2008.  The Court reasoned that delaying the vacatur by two
years would give the Agency time to address the ramifications of the
vacatur.  Because the Agency respectfully disagrees with the District
Court’s decision, on November 16, 2006, the United States filed a
notice of appeal with the U.S. Court of Appeals for the Ninth Circuit
and that appeal is currently pending.  

What types of vessels and discharges might become subject to CWA
permitting?  

Because the Court’s decision is not limited to vessels with ballast
water tanks, it appears to implicate an extremely large number of
vessels and a range of discharges.  Information available from the U.S.
Coast Guard indicates that in 2005, vessels equipped with ballast water
tanks alone accounted for 8,400 ships reporting over 86,000 port calls. 
However, there are also 13 million State-registered recreational boats,
81,000 commercial fishing vessels, and 53,000 freight and tank barges
operating in U.S. waters.  A final rulemaking undertaken specific to the
authority of CWA § 312(n) with respect to vessels of the Armed Forces
is illustrative as to the potential variety of operational discharges. 
For purposes of CWA § 312(n), that rulemaking identified 39 such
discharges in the context of military vessels, and it would appear that
besides ballast water, non-military vessels could generate approximately
two dozen, or perhaps more, of these kinds of operational discharges
(e.g., bilgewater, deck runoff, graywater).  See, 40 CFR 1700.4; 1700.5.


Are there any exemptions relevant to vessel discharges unaffected by the
Court’s ruling?  

The Court’s ruling would not affect vessel discharge exemptions from
permitting that are specifically provided for in the CWA itself.  For
example, § 502(6)(A) excludes from the Act’s definition of
“pollutant” sewage from vessels (including graywater in the case of
commercial vessels operating on the Great Lakes) and discharges
incidental to the normal operation of a vessel of the Armed Forces
within the meaning of the CWA § 312.  As another example, the CWA
provides in § 502(12)(B) that discharges from vessels (i.e., discharges
other than those when the vessel is operating in a capacity other than
as a means of transportation) do not constitute the “discharge of a
pollutant” when such discharges occur beyond the limit of the three
mile territorial sea.  Because both “a pollutant” and a “discharge
of a pollutant” are prerequisites to the requirement to obtain an
NPDES permit, these two statutory provisions have the effect of
exempting the vessel discharges they address from the requirement to
obtain an NPDES permit.

What are the implications of the Court’s ruling and what is EPA doing
in response?    

Section 301(a) of the CWA generally prohibits the “discharge of a
pollutant” without an NPDES permit.  If the District Court’s order
remains unchanged, the regulatory exclusion allowing for the discharge
of pollutants incidental to the normal operation of a vessel without an
NPDES permit will be vacated by the court on September 30, 2008.  This
means that, as of that date, that regulatory exclusion will no longer
exempt such discharges from the prohibition in CWA section 301(a).  The
CWA authorizes civil and criminal penalties for violations of the
prohibition against the discharge of a pollutant without a permit, and
also allows for citizen suits against violators.

Because discharges of pollutants incidental to the normal operation of
vessels have been exempt from the NPDES permitting requirement for over
30 years, the Agency lacks practical experience permitting them.  These
types of discharges pose unique challenges, because vessels are highly
mobile and the vessel universe is extremely diverse.  In order to
address the above ramifications of the Court’s ruling, EPA is
exploring all available options, including establishment of an
appropriate permitting program, and plans to solicit public input as it
does so.

For more information:  

Ruby Cooper, Water Permits Division, (202) 564-0757,   HYPERLINK
"mailto:cooper.ruby@epa.gov"  cooper.ruby@epa.gov  or 

John Lishman, Oceans and Coastal Protection Division, (202) 566-1364,  
HYPERLINK "mailto:lishman.john@epa.gov"  lishman.john@epa.gov .  

Documents related to the rulemaking petition and the Court’s ruling
are available on-line at:

  HYPERLINK
"http://www.epa.gov/owow/invasive_species/ballast_water.html" 
http://www.epa.gov/owow/invasive_species/ballast_water.html 

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*** FOR INFORMATIONAL PURPOSES ONLY  ***

*** FOR INFORMATIONAL PURPOSES ONLY  ***

United States Environmental Protection Agency

Office of Water

Office of Wastewater Management

Water Permits Division

April 2007

 

