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Court Case Clouds Rules on All Water Discharges

BoatUS Magazine - March 2007
When the Clean Water Act was signed into law more than 30 years ago, the Federal Environmental Protection Agency (EPA) went to work writing regulations articulating the permit system for different industries discharging pollutants. After they wrote regulations for industrial plants discharging chemicals into local waterways and they dealt with discharges from sewage treatment plants, the EPA turned to ships and boats, deliberately excluding "discharges incidental to normal operation of a vessel." This meant that boaters could go about their business, scrubbing their boats after fishing, using automatic bulge pumps to keep their boats afloat and cooling engines with sea water.

But a federal court decision last fall, after a six-year legal battle, could overturn this long-established exemption. And it could mean that starting in late 2008, every boat owner in the United States would be required to apply and pay for a federal permit for each of their boats.

In a decision last September by the U.S. District Court for Northern California, Northwest Environmental Advocates v. U.S. Environmental Protection Agency, the court held that EPA overstepped its authority three decades ago when it established this permit exemption for vessels, as such an exemption was not authorized by Congress. EPA had sought to limit the scope of the case to ballast water discharges, explaining that other discharges are "deminimus" sources of pollution. They also maintained that the exemption had stood for the past 30 years, through several comprehensive congressional reviews of the Clean Water Act. Both arguments were disallowed by the Court, which ordered that as of Sept. 30, 2008 , all discharges incidental to the normal operation of any vessel will require a permit.

The case was brought by Northwest Environmental Advocates, Stanford and Lewis and Clark university law schools, The Ocean Conservancy, and local environmental groups. According to Tim Eichenberg of The Ocean Conservancy, "the intended focus was on large commercial vessels discharging vast quantities of ballast water with aquatic nuisance species."

However, the particular sections of the law that were cited throughout the court battle have a wider application than just ballast water, and the law covers all types of vessels and the majority of discharges. After the initial decision by the court in March 2005, the Shipping Industry Ballast Water Coalition intervened on behalf of its members, including tugs, barges, and tanker companies. According to Brian McCalmon, of K&L Gates, the firm representing the Coalition, "We argued that the only subject properly before the court is the discharge of aquatic nuisance species in ballast water."

Ironically, several Great Lakes states joined in the court battle too, on the side of the environmental groups. New York , Michigan , Wisconsin , Minnesota , Illinois , and Pennsylvania , all plagued with aquatic nuisance species, apparently were seeking some type of national solution to ballast water. However, the decision may well impact the 3.6 million registered recreational boats in their home states.

So what does all this mean?
The court required the EPA to develop a compliance plan for all vessels, including millions of recreational boats by September 2008. This could mean that no matter whether you operate a tanker in the Great Lakes, a bass boat in Tennessee, or a sailboat in Oregon, you may be required to apply for and pay for a permit to operate your boat. Additional restrictions could potentially be mandated including the containment of your vessel's grey water and the use of your automatic bilge pump that helps keep your boat afloat.

Meanwhile the case is under appeal, and may remain in the courts for several years.

BoatU.S. is currently working with the National Marine Manufacturers Association to develop strategies to insure the owners of nearly 17 million registered boats and millions of unregistered boats in the U.S. , don't get swept up in a tide of unnecessary permit paperwork and fees. A legislative solution to allow recreational boats to continue to operate as they have for the past 30 years is being crafted. For current information on this effort, please visit boatblue.org. As this issue has major ramifications for all boaters, BoatU.S. is asking all members to provide your current email address to Membership@BoatUS.com so we can quickly communicate on this important issue.

© BoatUS Magazine March 2007