Only 45 Days Left—Have You Commented On EPA's Draft Vessel General Permit?

New Development

On December 8, 2011, the Environmental Protection Agency ("EPA") published two draft Vessel General Permits ("VGPs") that would authorize discharges incidental to the normal operation of commercial vessels—one to replace the existing VGP currently in force ("2008 VGP") and one that would apply to small vessels ("SVGP"), which are currently exempt from the 2008 VGP. The draft 2013 VGP, which applies to commercial vessels greater than or equal to 79 feet in length, would replace the 2008 VGP when it expires in December 2013. The draft SVGP, which applies to commercial vessels less than 79 feet in length, would provide such vessels with the Clean Water Act ("CWA") permit coverage they will be required to possess by December 2013 when the legislative exemption currently in place for small vessels expires.

Comments on the draft VGPs, Fact Sheets, and Economic Analyses are due by February 21, 2012. EPA intends to issue the final VGPs in November 2012, a full year before the final permits are expected to go into effect to allow vessel owners and operators time to prepare for new permit requirements. The Federal Register Notice, draft VGPs, Fact Sheets, and Economic Analyses can be accessed here.

Background

In 2006, after years of litigation, a federal court ordered EPA to discontinue exempting vessels from the CWA's National Pollutant Discharge Elimination System ("NPDES") permitting program, which regulates discharges of pollutants into U.S. navigable waters (generally within 3 miles from shore), for discharges incidental to the normal operations of a vessel. As a result, EPA developed the VGP program, in effect since February 2009, which covers 26 types of discharges incidental to normal vessel operations. Further litigation over the 2008 VGP ended in a settlement that required EPA to: (i) include more stringent numeric effluent limits to control the release of non-indigenous invasive species in ballast water discharges; (ii) publish a draft VGP by November 30, 2011 and issue the final VGP by November 30, 2012 so that the industry has enough time to become familiar with the new VGP requirements; and (iii) allow states six months after the publication of the new VGP to accept, accept with conditions, or deny/waive certification under Section 401 of the CWA.

The 2008 VGP applies to commercial vessels, U.S.-flag or foreign-flag, at least 79 feet in length. Commercial fishing vessels are exempt from the VGP requirements unless they...