Order Code RS22878
Updated September 17, 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 these and
other types of vessels from water quality regulation. This report discusses background
to the issue; bills introduced in response, two of which were passed by Congress on July
22 (S. 2766 and S. 3298); and draft permits proposed by EPA on June 17.
In the 110th Congress, legislation concerning the applicability of certain
environmental regulatory requirements to recreational and other types of boats has been
introduced. Two bills are titled the Clean Boating Act of 2008 (S. 2766 and H.R. 5949).
Legislation titled the Recreational Boating Act of 2007 also has been introduced (S. 2067
and H.R. 25501). Two other bills are the Vessel Discharge Evaluation and Review Act
(S. 2645 and H.R. 55942). Two other measures concerned just with non-recreational boats
are S. 3298 and H.R. 6556. As discussed below, Congress passed two of these bills, S.
2766 and S. 3298, on July 22, and President Bush subsequently signed them into law.
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
exempt an estimated 13 million recreational and other vessels from new rules that EPA
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 they 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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will promulgate in response to the court order. A federal appeals court upheld the district
court’s ruling the day after Congress acted.4
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. The district court’s order revokes the regulatory exemption as of
September 30, 2008. The government appealed the court’s order, but while waiting for
a ruling, on June 17 EPA proposed two draft CWA permits to respond to the court’s
mandate. Although the focus of the legal challenge was principally to EPA’s permitting
exemption for ballast water discharges from vessels,5 the court’s ruling — and its mandate
to rescind the regulatory exemption — also applies fully to other types of vessel
discharges that are covered by the exemption, such as graywater and bilge water.6 Barring
judicial or legislative relief, EPA would have been required to promulgate a CWA
permitting program to comply with the court’s mandate by September 30. As discussed
below, enactment of S. 2766 and S. 3298 relieves recreational boats and many but not all
other vessels from these requirements, and on August 31, the federal district court
approved EPA’s request to delay the court’s order until December 19, 2008.
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
4 Northwest Environmental Advocates v. U.S. Environmental Protection Agency, No. 03-74795,
EPA No. 03-5760, CA 9, July 23, 2008.
5 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.
6 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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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)).
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.”7
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, 2008.8 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. Under the district court’s
ruling, which was upheld on July 23, 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 appealed the court’s decision
to the Ninth Circuit Court of Appeals, it initiated steps seeking public comment on
permitting of discharges that are incidental to the normal operation of ships. On June 17,
EPA 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
7 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.
8 See footnote 3.
9 U.S. Environmental Protection Agency, “Draft National Pollutant Discharge 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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proposed permits could include over 13 million recreational boats and 98,000 commercial
fishing, passenger, cargo and other vessels operating in U.S. waters.
Legislative Proposals
Several bills in the 110th Congress seek to statutorily exempt vessels from any CWA
permitting requirement that EPA might adopt in response to the federal district court’s
order. They reflect four 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; (3) directing the Coast Guard to
issue national performance standards for such discharges, but exempting recreational and
certain commercial vessels; and (4) temporarily exempting fishing and some commercial
vessels from CWA permitting and requiring a study of impacts of vessel discharges.
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.”
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. These bills would amend the
permitting provision of the CWA (Section 402, 33 U.S.C. § 1342), not the definitions
provision. Unlike S. 2067 and H.R. 2550, these bills state that the term “recreational
vessel” 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) 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.
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

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the effective date of these regulations, a recreational vessel could neither operate nor
discharge in violation of the regulations.
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;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 in ballast water that is subject to NANPCA; and certain other
specified discharges.
A fourth set of proposals is reflected in S. 3298 and H.R. 6556, which address non-
recreational vessels. These identical bills would provide a two-year moratorium on
NPDES requirements for fishing vessels of all sizes (28,875 vessels, according to EPA)
and vessels less than 79 feet in length (rather than the full exemption proposed in S. 2645
and H.R. 5594) and require EPA to study and report to Congress on impacts of discharges
incidental to the operation of vessels (other than sewage and ballast water).
Congressional Action. The Senate Environment and Public Works Committee
approved S. 2766 on May 21 (S.Rept. 110-398). The House Transportation and
Infrastructure Committee approved H.R. 5949 on May 15 (H.Rept. 110-765). After the
two committees’ action on these bills, attention turned to impacts of the court’s ruling on
non-recreational vessels. 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.
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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On July 22 the Senate and House passed two of these bills. They passed S. 2766, to
exempt recreational boats from CWA permit requirements and require EPA to develop
management practices for discharges other than sewage that are incidental to the normal
operation of such vessels (signed into law July 29, P.L. 110-288). Congress also passed
S. 3298, providing a two-year permit moratorium for fishing vessels and other vessels less
than 79 feet in length and requiring EPA to evaluate the impact of discharges other than
sewage and ballast water that are incidental to the normal operation of vessels (signed July
31, P.L. 110-299).
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.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 apply to recreational
vessels less than 79 feet in length, an estimated 13 million domestic boats. Discharges
incidental to the normal operation 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 use of phosphorus-free soap, minimizing the discharge and
transfer of visible organisms that could spread invasive species, and managing on-board
trash. EPA estimates that the maximum national compliance cost would be $88 million,
or $26 per boat per year. Enactment of S. 2766 eliminates the need for this permit.
The second permit (the Vessel General Permit, or VGP) applies 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 types 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 larger than 79 feet or
more than 300 gross tons (53,000 vessels) would submit a Notice of Intent to be covered
by the permit. Others would be automatically covered. 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. Enactment of S. 3298 temporarily relieves
nearly 29,000 fishing and large recreational vessels of the need to comply with this permit,
but commercial vessels larger than 79 feet (totaling as many as 50,000 tank and freight
ships and barges, and cruise ships) still must comply as of December 19, 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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