The Ninth Circuit Court of Appeals struck down the Environmental Protection Agency's 30+ year old regulation exempting vessel "discharges" from the Clean Water Act's permit requirement.
In Northwest Environmental Associates v. U.S. Environmental Protection Agency (opinion here), at issue was a 35 year old regulation which set forth various vessel discharges that did not require a Clean Water Act permit listing them as follows: 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. 40 C.F.R. 122.3(a).
The text of the Clean Water Act, as analyzed by the Court, provides:
Section 301(a) of the CWA provides that, subject to certain exceptions, “the discharge of any pollutant by any person shall be unlawful.” Id. § 1311(a). One of these exceptions is for discharges authorized by a permit granted pursuant to the National Pollutant Discharge Elimination System (“NPDES”), a system set forth in section 402 of the Act. Id. §§ 1311(a), 1342. The combined effect of sections 301(a) and 402 is that “[t]he CWA prohibits the discharge of any pollutant from a point source into navigable waters of the United States without an NPDES permit.” N. Plains Res. Council v. Fid. Exploration & Dev. Co., 325 F.3d 1155, 1160 (9th Cir. 2003).
Slip. Op. at 9029.
An enviromental group brought suit, (background posted at Marten Law Group site here), alleging that this regulation was ultra vires and ought to be struck down. This regulation exempted three classes of discharge: marine engine discharge, graywater and discharges incident to vessel operations, i.e. ballast water. The sewage portion of the regulation was addressed elsewhere.
The environmental group was urging the EPA to pass regulations regarding ballast water, a threat vector for aquatic invasive species. The District Court agreed and ordered the EPA to bring the voided-regulation-exempt discharges into compliance with the permit requirements. On appeal, the Ninth Circuit agreed and, without further appeal, the EPA must by September 30, 2008 grant permits for these formerly exempted discharges or presumably take action to abate the discharges.
This is a far reaching case that could impact every boat, ship, and barge nation-wide. Very recently, the EPA began rule-making efforts to comply with the District Court order. This rule-making project would provide general permits to various vessel types to authorize continued discharges (i.e. outboard motor exhaust, marine diesel exhaust, graywater, etc). Stay tuned.
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