United States: Small Vessel General Permit Goes Into Effect

New Development

On September 10, 2014, the U.S. Environmental Protection Agency ("EPA") announced the issuance of the final Small Vessel General Permit ("sVGP") (the "Notice"). The sVGP will apply to non-military, commercial vessels that are less than 79 feet in length. Compliance with the sVGP allows vessels to meet the Clean Water Act ("CWA") requirement to obtain National Pollutant Discharge Elimination System ("NPDES") permit coverage for discharges incidental to normal operations. The sVGP is scheduled to come into effect on December 19, 2014, when the current moratorium expires. The following is a link to the Notice: www.gpo.gov/fdsys/pkg/FR-2014-09-10/pdf/2014-21408.pdf. The sVGP, Fact Sheet and Economic Analysis can be accessed on the EPA's website at http://water.epa.gov/polwaste/npdes/vessels/Small-Vessel-General-Permit.cfm.

Action Item: The rapidly approaching effective date means that owners and operators of an estimated 138,000 small vessels covered by this Notice should fill out the required permit paperwork and ensure their operations are in alignment with the sVGP as discussed below.

Background

The CWA prohibits the discharge of pollutants from a point source, including from a vessel, into the navigable waters of the United States without a permit. The EPA issued an initial Vessel General Permit ("VGP") for vessels 79 feet or larger in 2008 and a revised VGP on April 12, 2013, which became effective on December 19, 2013. However, smaller vessels, which the EPA recognizes as having "fewer discharge types" and being "different in operation than larger commercial vessels," were not covered by the VGP. This is because Congress had passed a series of moratoria delaying the implementation of the CWA pollutant discharge standards for small vessels, beginning in 2008. The most recent moratorium is set to expire on December 18, 2014, providing the impetus for issuing the sVGP.

Discussion of the sVGP

The sVGP will apply to non-military, non-recreational vessels under 79 feet. The sVGP is generally structured less stringently than the VGP. Although the draft sVGP limited application to vessels with less than 8 cubic meters of ballast water, the EPA removed this provision from the final permit. The sVGP will be applicable to "discharges incidental to the normal operation of a vessel" within the inland waters and territorial sea, which for the CWA extends three miles seaward of the baseline. In addition to the EPA's discharge requirements in the sVGP, 23 states and one Indian tribe provided state-specific conditions that are included in the sVGP. For example, galley, bath, and shower water will be considered "sewage" for commercial vessels on the Great Lakes. Another example is that Connecticut has banned the discharge of exhaust gas scrubber washwater in its waters. The sVGP will cover vessel discharges into all states and territories, regardless of whether those states implement other NPDES permit programs.

In contrast to the VGP, the sVGP does not require the vessel owner or operator to submit a Notice of Intent to receive permit coverage. Rather, vessel owners and operators subject to sVGP requirements should complete and maintain a Permit Authorization and Record of Inspection ("PARI") on board their vessels at all times. The PARI may be in electronic or paper format. The EPA chose this method because it is an efficient way for owners/operators to certify that they have read and agreed to comply with the terms of the permit, and to demonstrate basic understanding of the permit's terms and conditions. In addition, the form will provide the EPA (or its authorized representative) with a standardized foundation for conducting inspections.

Additionally, because the EPA concluded that small vessel owners and operators can achieve pollution minimization without complex treatment systems, the sVGP includes non-numeric effluent limits in the form of Best Management Practices.

The discharges covered in the sVGP are categorized into several broad categories, which are listed in the permit, and include: common-sense requirements for general discharges, fuel management, engine and oil control, solid and liquid waste management, deck washdown and runoff and above water line hull cleaning, vessel hull maintenance, graywater, fish hold effluent, ballast water, and overboard cooling water discharges. The EPA estimates the industry-wide cost of compliance will be $16.9 million, not taking into account costs related to enforcement.

Conclusions and Recommendations

Although small vessel owners were able to operate for years without permit coverage, the rapidly approaching effective date of the sVGP means that owners and operators of an estimated 138,000 vessels may need to significantly change their operations to ensure compliance with the sVGP by December 19, 2014, absent Congressional legislation to once again extend the moratorium. Owners and operators should review the sVGP and related information available on the EPA website and modify their vessel procedures to ensure compliance, including completing the PARI by the effective date.

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