In the United States Senate:
Senators Begich (D-AK) and Marco Rubio (R-FL) have crafted a bipartisan bill– S. 2094; the “Vessel Incidental Discharge Act” to establish a uniform national system of environmentally sound standards and requirements governing ballast water discharges and other discharges incidental to the normal operation of vessels.
The primary focus of the bill is on effectively regulating ballast water discharges from commercial non-fishing vessels greater than 79 ft in length. However, the bill would also require all commercial fishing vessels regardless of size to operate according to a consistent, nationwide system of ‘best management practices’ for discharges incidental to their normal operation as will be required by regulations to be developed (with EPA input) and administered by the US Coast Guard.
In turn, and of crucial importance to the shrimp fishery, the bill would make permanent the current legislative moratorium on the requirement for fishing vessels to secure EPA permits under the National Pollution Discharge Elimination System (NPDES) for discharges incidental to their normal operation. This moratorium was first enacted in 2008, extended twice, and will expire on December 18, 2014.
SSA would like to express its profound appreciation to Senators Begich and Rubio for their extraordinary leadership on this issue over the years, as well as to the following Senators in alphabetical order who have co-sponsored the bill to date: Senators Ayotte (R-NH), Blunt (R-MO), Boozman (R-AR), Casey (D-PA), Cochran (R-MS), Collins (R-ME), Hirono (D-HI), Landrieu (D-LA), Markey (D-MA), McCaskill (D-MO), Murkowski (R-AK), Nelson, (D-FL), Pryor (D-AR), Rockefeller (D-WV), Schatz (D-HI), Sessions (R-AL), Thune (R-SD), Toomey (R-PA), Vitter (R- LA), Warren (D-MA) and Wicker (R-MS).
SSA will continue to work with additional Senate offices in each of the 8 warm water shrimp producing states to secure their support. Further, SSA is also working with the Senate Committee on Commerce, Science and Transportation to move this legislation forward for adoption by the Committee and the full Senate.
With this in mind, SSA would also like to thank Jeff Lewis and Sean Houton on the Committee’s Majority Staff and Sara Decker on the Minority staff for their outstanding work on the complex substance of this critical legislation and for working together in a bipartisan manner on behalf of our shrimp fishermen and all commercial fishermen across the nation.
In the United States House of Representatives:
Congressmen LoBiondo (R-NJ) and Rick Larsen (D-WA) have also introduced an excellent bipartisan bill – H.R. 3464: the Commercial Vessel Discharges Reform Act of 2013, to address this problem.
SSA would like to thank Congressmen LoBiondo and Larsen for their consistent and expert leadership on this bill and the incredibly important permit moratoria legislation, as well as the following Members of Congress in alphabetical order for cosponsoring this crucial bill: Representatives Bilirakis (R-FL), DelBene (D-WA), Herrera Beutler (R-WA), Jones (R-NC), Michaud (D-ME), Shea-Porter (D-NH), Southerland (R-FL), Walden (R-OR) and Young (R-AK).
Like the Senate bill, the new House bill would also make permanent the current legislative moratorium on the requirement for all fishing vessels to comply with EPA requirements under the NPDES program for discharges incidental to their operation. The consequences for the shrimp fishery of the failure to enact this permanent exemption are the same as for the Senate bill, of course, and so SSA has and will continue to work with the authors of this bill and Committee staff to move it through the legislative process.
With that in mind, the legislation has now been incorporated into H.R. 4005, the “Coast Guard and Maritime Transportation Act of 2014”. This more comprehensive maritime and Coast Guard authorization bill provides a highly effective vehicle for the vessel discharge permit exemption bill (HR 3464), and it has already been adopted and reported by the House Transportation and Infrastructure Committee.
SSA is profoundly grateful to House Transportation & Infrastructure Committee majority staff John Rayfield and Geoff Gosselin, as well as Minority staff Dave Jansen for their extraordinary work in crafting and moving this bill through the Committee. This is an extremely positive development and achievement.
Next the bill will be considered by the full House and then reconciled with the Senate bill before it can be sent to the President to be signed into law. SSA will continue to be engaged in every step of this process.
Absent enactment of this legislation, shrimp fishing vessels and all other US commercial fishing vessels will be subject to the onerous requirements of either the EPA’s Vessel General Permit (VGP) for vessels greater than 79 feet in length, or the similar “small Vessel General Permit” (sVGP) for vessels less than 79 feet in length. EPA estimates that between 118,000 and 138,000 vessels could be subject to the sVGP’s requirements upon expiration of the current moratorium: of which nearly 60,000 are commercial fishing vessels less than 79 feet. The total estimate for all affected commercial fishing vessels of any size exceeds 81,000.
The VGP regulations have been in place for commercial non-fishing vessels larger than 79 feet since 2009. Once the moratorium expires, these regulations would apply to fishing vessels larger than 79 feet requirements for 27 types of vessel discharges that include such routine discharges as deckwash, fish hold effluent and greywater. In addition, the EPA recently finalized a separate set of regulations for sVGPs in anticipation of the expiration of the moratorium. Some elements of these regulations are incomprehensible when considered in the context of the wide range of sizes, types and operations of US fishing vessels. (EPA VGP and sVGP Regulations http://cfpub.epa.gov/npdes/vessels/vgpermit.cfm )
Compliance with these requirements by fishing vessels -if even possible -would be extremely costly and financial penalties for non-compliance are severe. Individual vessel owners would also be vulnerable to citizen lawsuits filed by hostile ENGOs.
The present situation grew out of a 2005 9th Circuit Court of Appeals ruling that affirmed a 2005 District Court decision that the EPA had exceeded its regulatory authority 32 years earlier when it determined the requirements of its National Pollution Discharge Elimination System (NPDES) under the Clean Water Act should not apply to vessels.
Instead, during those 32 years, the regulation and enforcement of pollutant discharges (including invasive species) from vessels was administered by the US Coast Guard pursuant to a series of federal statutes including the Act to Prevent Pollution from Ships in 1980, the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 and the National Invasive Species Act of 1996, among others.
Since the 2005 Court ruling, however, both the Coast Guard and the EPA are now required to administer separate and inconsistent sets of regulations which include a requirement for the EPA to issue permits for tens of thousands of commercial vessels -something that far exceeds the agency’s capacity and budget.
The Court’s decision to apply the NPDES program to vessels also opened the door for each of the States to independently establish a range of inconsistent vessel discharge standards and requirements for vessels transiting their waters. At least twenty-five States now have imposed such regulations. Implementation of this conflicting and confusing regime has become an administrative nightmare for the federal agencies involved, and presents owners of the more than 100,000 commercial vessels that operate in US waters with and impossible compliance and liability regime.
SSA worked extensively along with other fishing and maritime groups to secure the original legislative moratorium in 2008, and its extensions in 2010 and 2012. In addition to exempting fishing vessels from the EPA requirements, the 2008 legislation also mandated a to evaluate what if any threat discharges incidental to the normal operation of fishing vessels present to water quality.
SSA worked with the shrimp industry and the EPA and Coast Guard to secure the voluntary participation of six Gulf shrimp vessels in this study. In their report to Congress, EPA effectively concluded that this threat was minimal under normal open water operating conditions
Specifically, the report concluded: “EPA determined that the incidental discharges from study vessels to a relatively large water body are not likely to solely cause an exceedance of any NRWQC.” (NRWQA = National Recommended Water Quality Criteria under the Clean Water Act). (EPA report: http://cfpub.epa.gov/npdes/vessels/reportcongress.cfm)
SSA is very grateful to the owners of those shrimp vessels for their willingness to work with Federal officials to document this reality. This has made a substantial contribution to our success in the legislative process to date.
Finally, it should be noted that in 2008, Congress also passed the Clean Boating Act (PL 110-288) which provided a permanent exemption for all 13 million US recreational vessels from the requirement to obtain an NPDES permit for their incidental discharges, and directed the EPA and the Coast Guard to develop uniform national regulations for such discharges. This is precisely the same treatment sought by the current legislation for all commercial fishing vessels.