                    US EPA NEW ENGLAND RESPONSE TO COMMENTS
                    ON THE NO DISCHARGE AREA APPLICATION FOR
                                OUTER CAPE COD 

INTRODUCTION:
In April 2010, the U.S. Environmental Protection Agency New England Region (EPA) received an application from the Commonwealth of Massachusetts, pursuant to Section 312 (f)(3) of the Clean Water Act, 33 U.S.C. §1322 (f)(3), for the approval to designate waters of the Outer Cape Cod as a No Discharge Area (NDA) for sewage from vessels.  The Outer Cape Cod is a collective term for the towns of Chatham, Orleans, Eastham, Wellfleet, Truro, and Provincetown. After a preliminary review of the application, EPA published a Receipt of Petition in the Federal Register on April 29, 2011.  A 30-day comment period ran from April 29, 2011 through May 31, 2011.  The Receipt of Petition was mailed or e-mailed to approximately 600 recipients, which included federal and state agencies, municipalities, Marine Trades Associations, marine facilities, and other interested organizations and individuals.

This document represents EPA - New England's Response to Comments on the Massachusetts application.  Two comments were received; copies may be requested from EPA by writing Ann Rodney, U.S. Environmental Protection Agency - New England, Office of Ecosystem Protection, Oceans and Coastal Protection Unit, Five Post Office Square, Suite 100, OEP06-1, Boston, MA 02109-3912.

DETERMINATION:
The decision to approve or disapprove a No Discharge Area (NDA) proposed by the state is based on the standards set forth in Section 312 (f)(3) of the Clean Water Act, 33 U.S.C. §1322 (f)(3), and EPA regulations found at 40 C.F.R. § 140.4 (a).  Section 312 (f)(3) of the Clean Water Act provides the following:  "... if any State determines that the protection and enhancement of the quality of some or all of the waters within such State require greater environmental protection, such State may completely prohibit the discharge from all vessels of any sewage, whether treated or not, into such waters, except that no such prohibition shall apply until the Administrator determines that adequate facilities for the safe and sanitary removal and treatment of sewage from all vessels are reasonably available for such water to which such prohibition would apply."  EPA regulations at 40 C.F.R. §140.4 (a) mirror the statute's provisions and dictates the type of information that must be included in a state application for approval of a NDA.  The Administrator's authority for determining the adequacy of facilities for handling vessel sewage has been delegated to the Regional Administrator of the EPA Region in which the proposed NDA is located.

It is the state's role and authority to determine whether a NDA is required to enhance environmental protection of its waters beyond that provided by existing federal and state standards.  In accordance with EPA regulations in 40 C.F.R. § 140.4 (a)(1), the state must certify that such enhanced protection is required.  On the basis of this state determination, the state is authorized to designate some or all of its waters as a NDA, except that such designation will not take effect unless and until EPA determines that adequate facilities are reasonably available for removing and treating the vessel sewage in a safe and sanitary way.  Thus, EPA's role is to determine whether or not adequate facilities are reasonably available.  If EPA determines that they are, then the state's NDA shall take effect.

In its application to EPA, Massachusetts has certified that its waters require the enhanced protection of the NDA.  The resource description portion of the application explains the various types of resources in the area.

Massachusetts believes that its coastal waters need greater protection and the NDA will help in that regard because: (1) vessel sewage contributes to pollution problems, including aesthetic concerns; (2) experience has shown that a NDA can help improve water quality; and (3) cleaner water will help the recreational and commercial economy, which relies heavily on the use and enjoyment of these waters.  The Commonwealth of Massachusetts has a long-term commitment to improve state water quality.  

Before the state's NDA can take effect, EPA must determine that adequate facilities for vessel sewage are "reasonably available" in the area proposed.  EPA has evaluated compliance with this requirement, and has determined that the one facility is adequate and reasonably available to the boating public.  Massachusetts's application provided information on the number, location, and operating hours of the vessel sewage pumpout facility.  The application also provided information concerning vessel draught requirements that could exclude certain vessels from using the pumpout facilities, information indicating the waste from the pumpout facilities will be treated in conformance with federal standards, and information on the vessel population and vessel usage of the subject waters.  EPA staff reviewed this information and discussed these issues with state personnel, and conducted site visits in May 2011 to verify the existence and operation of the pumpout facility.

EPA received four comments on the "Receipt of Petition" published in the Federal Register on April 29, 2011.  Below are the names and addresses of individuals who submitted comments, a summary of their comment, and EPA's response, when appropriate.
 
   1. Dave Dabay - e-mail
Mr. Dabay requests EPA allow the discharge of treated sewage to continue, because it is cleaner than using a pumpout shoreside system, and no discharge zones make pollution worst.   Boat Marine Sanitation Devices (MSDs) provide a better level of treatment than Waste Water Treatment  Plants (WWTP).  He requested that regulations for shoreside systems be enforced. 

Region 1 has been implementing its No Discharge Area (NDA) Program since 1991, and there is no evidence to support these comments.  The use of pumpouts by boaters improves water quality.  Studies conducted in Puget Sound, Long Island Sound, Narragansett Bay, North Carolina, and Chesapeake Bay have shown that boats can be a source of fecal coliform bacteria in areas with high boat densities and poor flushing (EPA 841-B-01-005, Nov. 2001).
Marine Sanitation Devices (MSDs) do not treat sewage as well as WWTP, MSDs do not remove nutrients, and nutrients are a pollutant of concern in Massachusetts.  The level of treatment provided by an MDS is heavily dependent on the individual boat owner's operation and maintenance of the system, which is highly variable.  Conversely, a WWTP has daily operation and maintenance, permit limits, enforcement, and better quality effluent.  
EPA is unaware of regulations regarding shoreside systems other than the Clean Vessel Act requires pumpouts be maintained in good working order for the life of the grant, and users can only be charged five dollars.  In Massachusetts, if a marina, boatyard or a yacht club wants to expand,   it must install a pumpout.  

  2.	Lynn M. Muench - Letter 
  Senior Vice President  -  Regional Advocacy
  Midcontinent Office
  1113 Mississippi Avenue
  Suite 108
  St Louis, MO  63104
  
American Waterways Operators neither supported or opposed the designation but requested EPA recommit to encouraging states to engage in early and open communication with the tugboat and barge industry prior submitting a petition for an NDA.

Our understanding is that the Massachusetts Coastal Zone Management did not contact the tug and barge industry for this designation because no large commercial vessels (excluding fishing boats) operate within NDA boundary.  However, EPA will continue to encourage and engage the New England states and other affected entities early in the process, and encourage other states to do the same. 
  
3.	Association to Preserve Cape Cod - Letter
Maggie Geist, Executive Director 
3010 Main Street
P.O. Box 398
Barnstable, MA  02630-0398

Supports this designation.

4.	Pleasant Bay Resource Management Alliance
Carole Ridley, Coordinator
P.O. Box 1584
Harwich, MA  02645

Supports this designation.

In conclusion, EPA's responsibility in deciding to approve designation of an area as a NDA under the Clean Water Act, is to determine that there are reasonably available pumpout and dump station facilities for the vessels berthed and/or moored in the area.  EPA has determined that adequate facilities are reasonably available for removing and treating the vessel sewage in a safe and sanitary manner.  Therefore, Massachusetts may designate the waters of the Outer Cape Cod: Chatham to Provincetown, within state boundaries as described in its application as a No Discharge Area. 

