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New Water Protection Measures for Oceans, Rivers and Lakes

New York Law Journal

February 27, 2009

New developments to address water quality are moving forward at both the federal and state level. This article examines a new federal regulation that subjects commercial ships to a Clean Water Act general permit, and a proposed long-term sustainability plan to be adopted by New York State to protect New York's shores and water bodies.

Commercial Ships

As of Feb. 6, 2009, commercial ships are required to operate under a National Pollutant Discharge Elimination System (NPDES) permit for the first time since the enactment of the federal Clean Water Act (CWA). When the NPDES permit program was created in 1973, the U.S. Environmental Protection Agency (EPA) exempted "any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel" from its NPDES permitting requirements.[1] Because the regulation and enforcement of the design and operation of ships historically has been subject to the jurisdiction of the U.S. Coast Guard, EPA concluded for the past 25 years that Congress intended the Coast Guard, and not EPA, to regulate discharges of pollutants from ships incidental to their normal operation.[2]

In 2003, a coalition of environmental groups sued EPA in a federal district court, challenging the exemption for discharges incidental to the normal operation of vessels because of their concern over the increasing prevalence of aquatic invasive species entering U.S. waters from the discharge of ballast water from ships and the lack of regulation at the federal level to address this issue. Ships carry ballast water in order to maintain stability, taking on water when they unload cargo and discharging water as they load. Invasive species are non-native species whose introduction into a particular ecosystem cause or are likely to cause economic and environmental harm. Aquatic invasive species, such as the zebra mussel and hydrilla, an aquatic weed, thrive in U.S. waters at the expense of native biodiversity, resulting in significant adverse effects to local ecosystems and economies.

The federal court for the Northern District of California agreed with the environmental coalition, and the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that EPA had exceeded its authority in exempting vessel discharges from its NPDES permit program. The District Court ordered EPA to repeal the exemption for discharges incidental to the normal operation of vessels by Dec. 19, 2008, thus providing EPA with over two years to develop an NPDES permit for vessel discharges.[3] EPA did so, issuing its final NPDES permit for vessel discharges on Dec. 19, 2008, which, pursuant to a court order, went into effect on Feb. 6, 2009.

The Vessel General Permit (VGP) applies to all commercial vessels 79 feet or longer, and for smaller commercial vessels and fishing vessels of any size, the VGP applies to ballast water discharges only. EPA estimates that approximately 61,000 domestically flagged commercial vessels and approximately 8,000 foreign-flagged vessels may be affected by this permit.

The VGP regulates discharges incidental to the normal operation of vessels in the three-mile territorial sea and inland waters of the United States. It includes general effluent limits applicable to all discharges; general effluent limits applicable to 26 specific discharge streams, such as ballast water, bilgewater, graywater, and deck runoff; inspection, monitoring, recordkeeping and reporting requirements; and additional requirements applicable to certain vessel types, such as cruise ships.

The permit adopts many of the existing Coast Guard requirements but also adds additional best management practices. For instance, the permit limits discharges of oil or oily mixtures from ships to a concentration of less than 15 parts per million pursuant to existing Coast Guard requirements. With regard to ballast water discharges, the VGP incorporates the mandatory Coast Guard requirement that all transoceanic vessels carrying ballast water must conduct a salt water exchange at least 200 miles offshore to kill stowaway organisms, but also mandates salt water flushing at least 200 miles offshore for vessels declaring no ballast water on board, which was a voluntary requirement by the U.S. Coast Guard.[4]

Authorization

To become authorized under the VGP, vessels of 300 gross tons or more or that have the ability to hold more than eight cubic meters of ballast must submit a Notice of Intent (NOI) to EPA. No owner or operator is required to submit an NOI before June 19, 2009, and all owners/operators must file an NOI by Sept. 19, 2009.[5] Between 30 and 36 months after obtaining permit coverage, owners/operators must also submit a one- time permit report to EPA.

Vessels will also be subject to a number of state-specific requirements under the VGP because, pursuant to §401 of the Clean Water Act, when EPA issues a federal permit, states must issue a water quality certification to confirm that the permit will not violate state water quality standards. In doing so, states may add conditions to the permits based on standards promulgated under state law. Twenty-eight states, tribes and territories, including New York, New Jersey and Connecticut, added conditions to the VGP when they issued their §401 certifications.[6]

Generally, Clean Water Act permitting is administered by the states. To date, EPA has not granted any state authority to issue a state NPDES general permit to vessels; however, several states have developed state discharge permits for ballast water discharges pursuant to state law.[7] EPA has committed to work with states that wish to develop their own state general NPDES permit program for vessels, which must be approved by EPA before such state permit can take effect and replace the VGP in a particular state.

One concern with applying the CWA NPDES program for vessels is that vessels are mobile sources that transit the waters of many states, calling at ports throughout the nation. Many ships also originate from other nations and are thus subject to international laws. If states develop their own individual permit programs, or even adopt new requirements that can be added to §401 water quality certifications, vessels could become subject to a patchwork of permitting regimes with varying (and even inconsistent) requirements.

Bills have been pending in Congress that would create a national standard for ballast water treatment systems that is 100 times more stringent than the International Maritime Organization standards set forth in the International Convention for the Control and Management of Ships' Ballast Water and Sediments. Such a national standard could preempt regulation under the CWA NPDES program. While the bills are widely supported, a few key elected officials in Congress have prevented the passage of the bills because they believe states should have the right to develop state permits for ballast water discharges.

This states-rights' view appears to reflect concerns over EPA's denial last year of the 2005 petition filed by California, pursuant to the Clean Air Act §209(b), whereby California sought to require automakers to meet specific greenhouse gas reductions for the sale of new vehicles beginning in year 2010.[8] However, the concern over the California rules, which would also have been adopted by approximately 18 different states, is a very different issue from requiring multiple permits and regulations for vessels to call at state ports.[9]

The California car standards would regulate the sale of new cars, not existing vehicles entering the state. Therefore, the frustration by many over the prior administration's denial of California's greenhouse gas petition for vehicles should not be seen as public support for the view that all environmental issues need or should be addressed through state permit programs as opposed to the adoption of a strict national standard, particularly if such a patchwork of regulation could negatively impact the U.S. economy with little benefit to the environment. Indeed, the chairman of the Consultative Shipping Group, which comprises the maritime administrations of 18 governments, including Belgium, Canada, Denmark, Finland, France, Germany, Greece, Italy, Japan, Netherlands, Norway, Poland, Portugal, Singapore, Korea, Spain, Sweden, and the United Kingdom, sent a letter to the U.S. Department of State expressing his concern that the unwieldy patchwork of regulations that were being adopted at the state level would be detrimental to international shipping as well as commerce with and within the United States.[10]

Overall, in order for our nation to again be viewed as a leader in environmental protection by the international community and to protect our nation's economic health, it is important that the Obama administration reconsider these pending bills and put forward stringent national standards that protect U.S. waters in a consistent manner so that the environmental and economic benefits of shipping cargo throughout our nation can be maintained and improved.

Long-Term Sustainability Plan

The New York Ocean and Great Lakes Ecosystem Conservation Council recently presented a draft of its recommendations to Governor David A. Paterson and the New York Legislature regarding the long-term sustainability of New York's waters.[11] The report focuses on the importance of lakes, rivers and oceans to New York's economy and ecology, the critical threats that face these waters, and policy recommendations to address those threats.

The council was established by the 2006 New York Ocean and Great Lakes Ecosystem Conservation Act.[12] It includes representatives from nine state agencies: the Department of Environmental Conservation (DEC); Department of Agriculture and Markets; Empire State Development; Office of General Services; Office of Parks, Recreation and Historic Preservation; Department of State; Department of Transportation; New York State Energy Research and Development Authority; and the State University of New York.

The purpose of the council is to provide recommendations to the Legislature regarding how best to integrate ecosystem-based management into the state's existing agency programs and laws. Ecosystem-based management is an approach that considers an entire "ecological community" in policymaking, focusing on coordinating different industry sectors and government agencies rather than the sector-based approach of traditional regulatory systems. The council's more specific goals include developing clean coastal waters and beaches, safe seafood, healthy marine life, vibrant coastal communities, and resilient coastlines.

DEC is tasked with primary responsibility for implementing ecosystem-based management principles at the regional level. As part of this role, it will establish four "action zones" for the Great Lakes and one for the ocean to coordinate with federal agencies, other state agencies, local government, and stakeholders. Some of the council's specific goals include enhancing local planning in coastal transition zones, restoring fisheries in the Great Lakes, restoring ports and harbors, prioritizing coastal habitats in light of climate change and potential sea level rise, and fostering scientific data collection. The report recommends that the state focus on reducing debris in ocean and Great Lakes waters through enhanced enforcement and public education and that it make targeted efforts to eliminate toxic substances from the Great Lakes, especially within designated areas of concern, tributaries, embayments, and harbors.

A few of the report's recommendations are likely to affect the shipping industry. One recommendation is to establish "no discharge zones" in New York's waters along the south shore of Long Island and south shore embayments, New York Harbor, and Long Island Sound. The council advises that the state minimize adverse environmental impacts from maritime transportation by developing plans to reduce emissions and wastes and requiring adequate spill response capacity for ports and harbors.

The council also recommends continuing the work of the Invasive Species Council to prevent the introduction of new invasive species, respond to early detection of invasive species, and manage the invasive species that are already established in New York waters. One way to do this is through continuation of the Partnerships for Regional Invasive Species Management (PRISMs) program, through which DEC partners with resource managers, non-profits, industry, other state agencies, citizens, and other stakeholders to combat invasive species. The council also recommends establishing an Invasive Species Contingency Fund, which would provide rapid response assistance to eradicate or prevent the spread of new invasive species.

The council's report emphasizes that healthy ecosystems are essential to healthy economies and communities. Coastal communities often depend directly on aquatic resources, such as fisheries and commercial navigation, and they also benefit indirectly through tourism revenues that may be adversely affected by poor water quality. To balance ecological and community interests, the council recommendations include promoting smart growth mechanisms, sustainable port and harbor usage, tourism, and re-developing brownfields. Because all of these efforts should be based on scientific understandings of the underlying ecosystems and their challenges, the report provides a number of recommendations to increase scientific data collection, research and analysis regarding the various challenges.

Through a stringent national program that regulates discharges from ships and smart management programs by states for their coastlines, further protection of our oceans, rivers and lakes will be guaranteed.


Christine A. Fazio and Ethan I. Strell are attorneys in the environmental practice group at Carter Ledyard & Milburn. Elizabeth C. Black, an associate in the firm, assisted in the preparation of this column.

Reprinted with permission from the February 27, 2009 edition of The New York Law Journal  © 2009 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.


Endnotes


[1] 40 CFR §122.3(a)

[2] See, e.g., National Invasive Species Act of 1996, which amended the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, 16 USC §§4701 et seq.

[3] Northwest Environmental Advocates v. EPA, 61 E.R.C. 1245 (N.D. Cal. 2005), aff'd, 537 F.3d 1006 (9th Cir. 2008).

[4] The VGP and all supporting information is available on the EPA Web site at http://cfpub.epa.gov/npdes/home.cfm?program_id=350.

[5] A schedule of the NOI deadlines is available online at http://cfpub.epa.gov/npdes/enoi.cfm.

[6] Copies of states' §401 certifications are found at EPA's Web site at http://cfpub.epa.gov/npdes/docs.cfm?program_id=14&view=allprog&sort=name#certification. There are a number of pending lawsuits separately brought by environmental groups and industry challenging the VGP. There are also challenges to states' §401 certifications. The authors represent a coalition of state port authorities and shipping interests that are challenging New York's 401 certification.

[7] See, e.g., Mich. Comp. Laws §324.3112(6); California PRC §§72400 et seq.

[8] Earlier this month, in response to President Barack Obama's request to revisit the denial made under the Bush administration, the EPA announced that it will reconsider its decision.

[9] See, e.g., Pew Center on Global Climate Change, Vehicle Greenhouse Gas Emissions Standards, available at http://www.pewclimate.org/what_s_being_done/in_the_states/vehicle_ghg_standard.cfm (updated Feb. 3, 2009).

[10] Jan. 16, 2009, letter from Jorgen Hammer Hansen, chairman of Consultative Shipping Group, to John Byerly, Deputy Assistant Secretary for Transportation Affairs, Bureau of Economic, Energy and Business Affairs, U.S. Department of State.

[11] New York Ocean and Great Lakes Ecosystem Conservation Council, "Our Waters, Our Communities, Our Future: Taking Bold Action Now to Achieve Long-term Sustainability of New York's Ocean and Great Lakes," available at www.nyoglecc.org.

[12] N.Y. Conserv. Law Art. 14.



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