Order Code RS22878
Updated June 19, 2008
Clean Water Act: Legislation Concerning
Discharges from Recreational Boats
Claudia Copeland
Specialist in Resource and Environmental Policy
Resources, Science, and Industry Division
Summary
The Environmental Protection Agency is attempting to develop a regulatory
response to a 2006 federal court ruling that vacated a long-standing rule that exempts
discharges associated with the normal operation of vessels from permit requirements of
the Clean Water Act. Concern that this ruling could require millions of recreational
boaters to obtain permits has led to the introduction of legislation to exempt such vessels
from water quality regulation. This report discusses background to the issue, six bills
(S. 2067/H.R. 2550, S. 2766/H.R. 5949, and S. 2645/H.R. 5594), and draft permits
proposed by EPA on June 17.
In the 110th Congress, legislation concerning the applicability of certain
environmental regulatory requirements to recreational boats has been introduced. Two
bills are titled the Clean Boating Act of 2008 (S. 2766, Senator Bill Nelson and Senator
Boxer; and H.R. 5949, Representative LaTourette). These identical bills have been
ordered reported by Senate and House committees. Legislation titled the Recreational
Boating Act of 2007 also has been introduced (S. 2067, Senator Martinez; and H.R. 2550,
Representative Taylor1). Two other bills are the Vessel Discharge Evaluation and Review
Act (S. 2645, Senator Stevens, and H.R. 5594, Representative Young2).
These bills are intended to address an issue that has arisen in implementation of the
Clean Water Act (CWA). In 2006, a federal court ordered the Environmental Protection
Agency (EPA) to revise a CWA regulation that currently exempts discharges from the
normal operation of all vessels from the act’s permit requirements.3 The bills seek to
1 S. 2067 includes several stylistic and formatting differences from H.R. 2550, but the bills are
similar enough that they are considered together in this report.
2 These bills are not identical, but are substantially similar and are discussed together in this
report.
3 Northwest Environmental Advocates v. EPA, No. C 03-05760 SI (N.D.Cal. September 18,
2006).

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exempt an estimated 13 million recreational vessels from new rules that EPA will
promulgate in response to the court order.
The federal court order would reverse EPA policy in effect since 1973, in a rule that
excluded discharges incidental to the normal operation of vessels from CWA permitting
requirements. Under the court’s order, EPA must revoke the regulatory exemption by
September 30, 2008. The government has appealed the federal court’s order, but in case
the appeal is unsuccessful, on June 17 EPA proposed two draft CWA permits to respond
to the court’s mandate. While the focus of the legal challenge was principally to EPA’s
permitting exemption for ballast water discharges from vessels,4 the court’s ruling — and
its mandate to EPA to rescind the regulatory exemption — applies fully to other types of
vessel discharges that are covered by the exemption, such as graywater and bilge water.5
Barring judicial or legislative relief, EPA will be required to promulgate a CWA
permitting program by September 30. If it gets relief, EPA can be expected to cease
developing CWA rules for vessel discharges and retain the existing CWA regulatory
exemption from permit requirements.
Background: Clean Water Act Requirements
The Clean Water Act is the principal federal law concerned with pollutant discharges
to the nation’s surface waters, including rivers and streams, lakes, estuaries, and coastal
waters. Section 301(a) of this act provides that “the discharge of any pollutant by any
person shall be unlawful” unless the discharge is in compliance with certain other sections
of the act. The CWA defines “discharge of a pollutant” as “(A) any addition of any
pollutant to navigable waters from any point source, (B) any addition of any pollutant to
the waters of the contiguous zone or the ocean from any point source other than a vessel
or other floating craft” (33 U.S.C. § 1362(12)). Various courts have held that biological
organisms, such as bacteria (e.g., fecal coliform), algae, dead fish, live fish, fish remains,
and plant materials are considered pollutants under this definition. A point source is a
“discernible, confined and discrete conveyance” and includes a “vessel or other floating
craft” (33 U.S.C. § 1362(14)). However, discharges of sewage from vessels are expressly
excluded from the definition of “pollutant” (33 U.S.C. § 1362(6)(A)), and sewage
discharges from vessels are regulated under a separate provision of the act that concerns
marine sanitation devices (33 U.S.C. § 1322). The term “discharge incidental to the
normal operation of a vessel” is defined in this provision (33 U.S.C. § 1322(a)(12)).
4 Ballast water is stored in tanks on large ships such as tankers and cruise ships to provide
stability. It is essential to the proper functioning of ships (especially cargo ships), because the
water that is taken in compensates for changes in the ship’s weight as cargo is loaded or
unloaded, and as fuel and supplies are consumed. However, ballast water discharges typically
contain a variety of biological materials, including plants, animals, viruses, and bacteria. These
materials often include non-native, nuisance, exotic species that can cause extensive ecological
and economic damage to aquatic ecosystems. For information, see CRS Report RL32344, Ballast
Water Management to Combat Invasive Species, by Eugene H. Buck.
5 Graywater is wastewater from the sinks, showers, galleys, laundry, and cleaning activities
aboard a ship. Bilge water is water that collects in the lowest inner part of the ship’s hull. It is
frequently contaminated with oil and other lubricants from the engine room.

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One way a pollutant may be lawfully discharged without violating the section 301
prohibition is to obtain a National Pollutant Discharge Elimination System (NPDES)
permit (33 U.S.C. § 1342). Under section 402(a), EPA or a qualified state may “issue a
permit for the discharge of any pollutant, or combination of pollutants, notwithstanding
section 301(a)” upon meeting certain conditions required by the act (33 U.S.C. § 1342(a)).
Discharging pollutants into waters of the United States without a permit, or in violation
of the terms of a permit, can subject a source to the act’s enforcement provisions, which
include fines and penalties (33 U.S.C. § 1319).
In 1973, EPA promulgated a regulation that excluded discharges incidental to the
normal operation of vessels from NPDES permitting requirements. That rule, at 40 CFR
§122.3(a), excludes from permitting “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.” The exemption applies to
vessels of all sizes, whether motorized or not. At the time, EPA stated its belief that
“[T]his type of discharge generally causes little pollution and exclusion of vessel wastes
from the permit requirements will reduce administrative costs drastically.”6
This long-standing EPA regulation was subject to legal challenge in the U.S. District
Court for the Northern District of California. In 2005 the court found that Congress had
directly expressed its intention that discharges from vessels be regulated under the CWA,
and that the regulation at issue contradicted that intention. In September 2006 the court
issued a final order that will vacate (revoke) the regulatory exclusion in 40 CFR §122.3(a)
as of September 30, 2008.7 The district court rejected EPA’s contention that Congress
had previously acquiesced in exempting the “normal operation” of vessels from CWA
permitting and disagreed with EPA’s argument that the court’s two-year deadline creates
practical difficulties for the agency and the affected industry. Unless the district court’s
ruling is overturned, after September 30, discharges of pollutants incidental to the normal
operation of a vessel that had formerly been exempted from NPDES permitting will be
subject to prohibitions in CWA section 301 against the discharge of a pollutant without
a permit. Although EPA has appealed the court’s decision to the Ninth Circuit Court of
Appeals,8 it initiated steps seeking public comment on permitting of discharges that are
incidental to the normal operation of ships and on June 17 proposed two NPDES permits
in response to the court’s order (discussed below).9 EPA estimates that the universe of
vessels potentially affected by the court’s order and proposed permits could include over
6 U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System,”
38 Federal Register 98, May 22, 1973, p. 13528. Although this regulatory exemption from
NPDES permitting includes discharges of sewage from vessels, as discussed previously, these
discharges are regulated pursuant to CWA Section 312 and regulations at 40 CFR Part 140,
which do not use a permitting program. The federal court’s order vacating 40 CFR § 122.3(a)
will not affect EPA’s method of regulating sewage discharges from vessels.
7 See footnote 3.
8 Oral argument on the appeal occurred on August 14, 2007 (Northwest Environmental Advocates
v. EPA, No. 03-74795/06-17187, CA 9).
9 U.S. Environmental Protection Agency, “Draft National Pollutant Diischarge Elimination
System (NPDES) General Permits for Discharges Incidental to the Normal Operation of Vessels,”
73 Federal Register 117, June 17, 2008, pp. 34296-343049.

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13 million recreational boats and 98,000 commercial fishing, passenger, cargo and other
vessels operating in U.S. waters.
Legislative Proposals
The pending bills seek to statutorily exempt recreational vessels from any CWA
permitting requirement that EPA might adopt in response to the federal district court’s
order. They reflect three approaches: (1) modifying a CWA definition to exempt
discharges from recreational vessels, (2) modifying the CWA to exempt recreational
vessel discharges from permitting and directing EPA to issue performance standards for
discharges incidental to the normal operation of vessels; and (3) directing the Coast Guard
to issue national performance standards for such discharges, but exempting recreational
and certain commercial vessels from such requirements.
The first approach is reflected in S. 2067 and H.R. 2550. These bills would amend
the definitions provision of the CWA (Section 502, 33 U.S.C. § 1362) to define a
“recreational vessel” and to detail the types of discharges from such vessels that would
not be defined as pollutants under the act, and therefore would be exempt from
permitting. Under these bills, the term “recreational vessel” is defined to mean a vessel
that is “manufactured for operation, or operated, primarily for recreational purposes,” or
that is “leased, rented, or chartered to an individual for recreational purposes.” The types
of exempt discharges from such vessels would be defined in the CWA to include:
any deck runoff from a recreational vessel, any engine cooling water, gray water, bilge
water effluent from properly functioning recreational marine engines, laundry,
shower, and galley sink wastes from a recreational vessel, or any other discharge
incidental to the normal operation of a recreational vessel; except that this
subparagraph does not apply to rubbish, trash, garbage, or other such materials
discharged overboard by a recreational vessel.
S. 2766 and H.R. 5949, reflecting the second approach, contain a generally similar
provision defining discharges incidental to the normal operation of recreational vessels
that would be statutorily exempt from permitting. In defining “recreational vessel,” these
bills include boats manufactured or used primarily for pleasure or boats leased, rented, or
chartered to a person for the pleasure of that person. The provision in these bills would
amend the permitting provision of the CWA (Section 402, 33 U.S.C. § 1342), not the
definitions provision. Different from S. 2067 and H.R. 2550, S. 2766 and H.R. 5949
include no language saying that the permitting exemption does not apply to discharges of
“rubbish, trash, garbage or other such materials.” Also unlike S. 2067 and H.R. 2550,
these bills further state that the term does not include a vessel that is subject to Coast
Guard inspection and that is “engaged in commercial use” or “carries paying passengers”
(e.g., ferries or cruise ships).
S. 2766 and H.R. 5949 (unlike S. 2067 and H.R. 2550) would add provisions
concerning management practices for discharges from recreational vessels. As a result of
these provisions, while recreational vessels (as defined in the legislation) would be exempt
from permitting requirements, they could become subject to regulations mandating
management practices to control discharges.

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Section 4 of S. 2766 and H.R. 5949 directs EPA, in consultation with the Coast
Guard, the Department of Commerce, and interested states to develop management
practices for discharges other than sewage from such vessels. It identifies several factors
to be considered by EPA, such as the nature and environmental effects of the discharge,
the practicability of using a management practice, applicable federal and state laws and
international standards, and cost. After developing management practices, EPA would be
required to promulgate federal standards of performance for each. These standards could
distinguish among classes, types, and sizes of recreational vessels, and also between new
and existing vessels. The standards could allow for waivers “as necessary or appropriate
to a particular class, type, age, or size of vessel.” Finally, the Coast Guard would be
required to promulgate regulations incorporating the EPA standards of performance. After
the effective date of these regulations, a recreational vessel could neither operate nor
discharge in violation of the regulations.
The Senate Environment and Public Works Committee approved S. 2766 without
amendment on May 21. The House Transportation and Infrastructure Committee approved
H.R. 5949, also without amendment, on May 15. Subsequently, on June 12, a House
Transportation subcommittee held a hearing on vessel discharge issues, including whether
commercial as well as recreational boats should be exempted from permit requirements.
A third approach to the issue is reflected in S. 2645 and H.R. 5594, which would
exempt recreational and certain other vessels from regulation. Unlike the previously
discussed bills, these measures would give primary responsibility to address vessel
discharges to the Coast Guard, not EPA. The legislation would not amend the CWA, but
it would in part amend the Nonindigenous Aquatic Nuisance Prevention and Control Act
(NANPCA, 16 U.S.C. § 4701 et seq.). Under NANPCA, the Coast Guard is responsible
for developing and implementing a program to prevent the unintentional introduction and
dispersal of nuisance aquatic species into U.S. waters from ship ballast water.
S. 2645 and H.R. 5594 direct the Coast Guard to study and report on vessel
discharges that are incidental to the normal operation of vessels, other than aquatic
nuisance species, including types of discharges, the nature and extent of potential effects
on human health and the environment, and an analysis of control technologies or best
management practices. Based on the study, the Coast Guard is to promulgate and enforce
uniform national discharge standards. S. 2645 and H.R. 5594 would suspend any permit
requirement for discharges incidental to the normal operation of vessels promulgated
under any other provision of law (i.e., the legislation would supersede any CWA permits
issued by EPA). After promulgation of the Coast Guard standards, states would be
preempted from establishing separate laws or rules, but states could prohibit such
discharges in areas where needed for greater environmental protection.
Under S. 2645 and H.R. 5594, the following discharges incidental to the normal
operation of vessels would be exempt from the new Coast Guard rules: discharges from
recreational vessels (defined in the same manner as in the CWA bills discussed above);10
discharges from commercial vessels less than 79 feet in length; discharges from fishing
vessels and fish tender vessels (H.R. 5594 only); discharges of aquatic nuisance species
10 S. 2645 limits the exemption to recreational vessels less than 79 feet in length; H.R. 5594 has
no such limit.

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in ballast water that is subject to NANPCA; and certain other specified discharges, such
as those associated with vessels conducting aquatic research, or those needed to secure the
safety of a vessel. The term “discharge incidental to the normal operation of a vessel”
would be defined as in CWA Section 312 (33 U.S.C. § 1322(a)(12)).
EPA Response: Two General Permits are Proposed
On June 17, while waiting for the court of appeals or Congress to provide relief from
the district court’s order, EPA proposed two CWA permits that it believes could be
finalized by September 30.11 They are general permits that would apply in all states;
generally, EPA authorizes states to administer the issuance and enforcement of NPDES
permits, in lieu of EPA. In this case, however, EPA would be the permitting entity.
One permit (the Recreational General Permit, or RGP) would give permit coverage
to recreational vessels less than 79 feet in length, including motorboats, sailboats,
recreational fishing boats, rowboats, etc., comprising an estimated 13 million domestic
boats. Discharges incidental to the normal operation of these vessels covered by the draft
permit include toxic (mainly copper from anti-fouling paints and detergents) and
conventional pollutants from deck runoff, bilgewater, non-contact engine coolant and
small boat engine wet exhaust, leachate from anti-foulant hull coatings, and fuel tank
overflows. The permit would require recreational boat owners to use several management
practices intended to minimize or reduce pollutants of concern, such as requiring use of
phosphorus-free soap, minimizing the discharge and transfer of visible organisms that
could spread invasive species, and managing on-board trash. Recreational boats would
be automatically covered by the permit and would not have to apply to EPA or submit a
Notice of Intent to be covered by the permit. There would be no permit fees. EPA
estimates that the maximum national compliance cost would be $88 million, or $26 per
boat per year.
The second permit (the Vessel General Permit, or VGP) would give permit coverage
to commercial and large recreational vessels. This is a more complex permit than the
RGP, because it covers eight large categories of vessels. EPA identified 28 categories of
waste streams from the normal operation of these vessels (some are not applicable to all
vessel types). The permit proposes that most would be controlled by specific best
management practices, many of which are already practiced. Some categories, such as
cruise ships, would be subject to more detailed requirements. Vessels would be subject
to certain monitoring and annual reporting requirements. EPA estimates that the universe
of vessels subject to this permit is 98,645 (including about 7,900 foreign flagged vessels).
Those that are larger than 79 feet or more than 300 gross tons (53,000 vessels) would be
required to submit a Notice of Intent to be covered by the permit. Others would be
automatically covered. As with the RGP, there would be no permit fees. Projected
compliance costs range from a low of $8.2 million to $26.2 million annually; they vary
based on assumptions of vessel populations affected and the number of instances in which
incremental costs will be incurred.
The public comment period on the draft permits closes on August 1, 2008.
11 See footnote 9. The permit texts, detailed fact sheets, and economic and environmental benefit
analysis documents are available at [http://cfpub.epa.gov/npdes/home.cfm?program_id=350].

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