Devil may be in the details, say industry leaders, citing provision that would let states levy fees
At first glance, the permit system proposed by the U.S. Environmental Protection Agency under the Clean Water Act may seem fairly simple for the average boater to follow.
There’s no permit fee. Boaters do not have to apply for the permit, nor do they have to keep anything on their boats to show record of the permit. Also, the EPA says, many boaters already follow its proposed best-management practices.
And according to the EPA, the cost to comply with the permit, which would go into effect Oct. 1, would be minimal to the nation’s estimated 18 million recreational boaters. There are two proposed permits: one for recreational vessels under 79 feet and the other for those 80 feet and above, which also encompasses commercial vessels.
But dig a little deeper into the federal agency’s plan, and those in the industry say implications of this proposal are more widespread and far-reaching than the EPA says.
“When you first look at it, the specific requirements don’t look that bad. The concern is the donkey is ready to kick you,” said Margaret Podlich, vice president of government affairs for BoatU.S.
While the EPA’s requirements may be simple, 45 states and Puerto Rico may tack on their own requirements and fees to the federal permit. The federal agency is required to seek what’s known as 401 certification from the states, meaning the states must certify that the permit meets their laws.
The EPA proposal, according to Podlich, says any state can layer on additional requirements of boaters.
“And, frankly, we will not see those ahead of time,” Podlich said. “We will not have the opportunity to have public comment on them; they’re just going to happen.”
Therefore the list of best-management practices the EPA has put together for boaters is just a starting point, she said.
Matthew Dunn, manager of natural resources and economic policy for the National Marine Manufacturers Association, said he wouldn’t be surprised if states added a fee to the proposed permit.
“It’s a revenue raiser and the states will be policing this issue, so I think they see it as an administrative issue,” he said, calling it essentially “an unfunded mandate.”
Additionally, he expects the EPA will be sued on this permit and boaters could face citizen suits.
Dunn also pointed out that the EPA has no definitive answers on how this policy will be enforced.
EPA officials, in a July 2 Webcast, acknowledged there are still many unanswered questions.
“This is a universe that has not been regulated before,” said Deborah Nagle, chief of the industrial branch of the water permits division.
Nagle said it was unknown how many states planned to add their own requirements to the permit, adding she expected “there will be some.”
She also said the EPA has not spent much time discussing this issue with the U.S. Coast Guard, which presumably will be involved in its enforcement.
“That is a task that we need to put more effort into,” she said. “Stay tuned, there will be more to come on that.”
How did we get here?
Podlich said it’s important to note the EPA was required by a court order to come up with a permitting plan.
The issue dates back to 1999 when the Northwest Environmental Advocates, Center for Marine Conservation and Great Lakes United petitioned the EPA on concerns focused on ballast water.
Ships, in an effort to maintain stability while in transit, filled their ballast tanks with water. Large ships often carry millions of gallons of ballast water, which can contain organisms ranging from microscopic plants and animals to larger, invasive species, such as zebra mussels.
In September 2003, the EPA denied the petition and the groups filed a lawsuit later that year.
In March 2005, a U.S. district court ruled that the regulation excluding discharges incidental to the normal operation of a vessel from permitting exceeded the agency’s authority under the Clean Water Act.
In September 2006, a final order revoked the exclusion as of Sept. 30, 2008, potentially affecting all incidental discharges of vessels. The discharges are not limited to ballast water, but nearly 28 additional types of discharges as well, the EPA said.
In November of that year, the government filed a notice of appeal with the Ninth Circuit Court of Appeals, and oral arguments were heard Aug. 17, 2007.
As of Soundings Trade Only’s press deadline, the court had not issued a decision, though the usual timeframe for such decisions is nine months after arguments are heard.
Therefore, the EPA had no choice but to move forward with a permitting plan while awaiting the court’s decision.
Meanwhile, bills before both chambers of Congress would fully and permanently restore the longstanding regulation that excludes recreational boaters from the permitting regulations.
The Clean Boating Act of 2008 has enjoyed wide bipartisan support, though plans to pass it prior to the July 4 recess failed when Sen. Lisa Murkowski, R-Alaska, objected by saying the bill should be expanded to include some commercial vessels.
“Sen. Murkowksi is doing her job, she is representing her commercial vessel interests in Alaska, that is fine, we have no quarrel with that,” said the NMMA’s Dunn. “We hope that when it comes down to it, that recreational boaters will get the relief they need and deserve.”
Congress is working on a tight deadline, with both chambers in recess in August, returning for two to three weeks in September.
Dunn said he does not anticipate the court will rule in favor of overturning the decision.
“We just don’t think that’s a likely outcome,” noted Dunn. “Legislation continues to be the only way to restore the longstanding exemption.”
Details of the permit proposal
The EPA proposed two separate permits, with most recreational boaters falling under the Recreational Vessel General Permit, or RGP, for boats under 79 feet.
“The RGP is a much simpler permit than the [permit for boats 80 feet and over and commercial vessels] and primarily includes [best management practices] designed to minimize the amount of any discharge produced as well as reduce the likelihood the discharge will enter a water body,” the EPA said.
In addition to required best practices, the permit includes a section to encourage best practices.
Some of the required best practices include:
• no visible garbage in effluents;
• no discharge of visible living organisms (except bait), cleanup of any visible sheen originating from a vessel, secure trash receptacles on board, no disposing of fish wastes in harbors or marinas and cleaning organisms from hulls if trailering to another body of water;
• requires the use of non-toxic, phosphate-free soaps and cleaners;and
• inspect the engine for loose seals, minimizing entry of oil into the bilge and minimizing gray water discharges in areas with heavy vessel traffic.
The encouraged best practices include using bathrooms and showers on shore and that the cleaning of hulls with anti-fouling hull paint take place out of and away from the water.
The EPA estimates the cost to follow these practices will be minimal to boaters. It estimates it would cost motorboat owners between $8.79 and $25.99 to comply, while sailboat owners would pay between $5.39 and $22.59 for compliance.
Those with non-motorized small craft would pay between $0.29 and $2.39.
“Nationally, the draft economic impact analysis indicates that the RGP has an expected cost of $88.2 million annually,” the EPA said.
Both Podlich and Dunn said they don’t know how the EPA came up with those figures.
“I think we have to take them with a grain of salt,” said Podlich.
Also, Dunn noted, the cost for non-compliance is high: $32,500 per violation, per day.
“The prevailing concern continues to be the application of the regulatory regime, which is designed for corporate polluters and has penalties that are designed to reign in corporate polluters and those penalties are now going to be applied to individual recreational boaters,” Dunn said.
So, how do you educate an estimated 18 million recreational boaters on the proposed permit? The EPA knows this is a challenge and said it has reached out to groups, such as BoatU.S. for help.
Podlich said she’s talked with boaters who are fully aware of the issue, and others who don’t know much about it. But it’s those boaters who many not consider themselves boaters that she’s most concerned about.
“Think about how many people can easily buy a paddle, hopefully a life jacket and a kayak at Wal-Mart,” she said. “They don’t necessarily consider themselves traditional boaters…where are they going to learn about this?”
The EPA estimates between 25 to 50 people attended its public hearings on the issue, with about 500 taking part in the July 2 Webcast.
The comment period on the issue ended Aug. 1 and, as of early July, a EPA spokeswoman could not estimate how many comments the agency had received.
“Based on our experience, most people wait until very close to the final deadline to comment on things such as this,” the EPA’s Tisha Petteway said in an e-mail.
Meanwhile, Dunn and Podlich said it’s not too late for boaters and those in the industry to contact their legislators about passage of the Clean Boating Act.
Dunn said there will be a lot of angry people Oct. 1 — about a month away from the presidential election — if the simple, bipartisan legislation does not pass.
“If they think they’ve gotten a lot of calls over the last year,” he said. “I think they should expect many more.”
For information on the proposed permits, visit www.epa.gov/npdes/vessels.
For information on how to contact your legislators, visit www.boatblue.org.