The EPA’s new “Vessel General Permit” goes into effect February 6, 2009, requiring “all vessels operating as a means of transportation that discharge ballast water and other incidental discharges into waters of the United States”  to comply with a range of Best Management Practices (BMPs), reporting, and other requirements.

Historically, EPA has exempted ballast water discharges, and other discharges incidental to the normal operation of vessels from Clean Water Act NPDES permit requirements.  However, because of a court’s ruling that EPA’s exemption of incidental discharges exceeded EPA’s statutory authority under the Clean Water Act, the EPA developed two draft general permits to regulate incidental dischagres from vessels:  the Vessel General Permit and the Recreational Vessel General Permit.  See also, the Ninth Circuit’s upholding the lower court’s decision.  Because Congress exempted recreational vessels from NPDES permitting, the EPA finalized the Vessel General Permit on December 18, 2008.  73 Fed.Reg. 79473 (Dec. 29, 2008). Although the Federal Register notices states that the General Permit goes into effect on December 18, 2008, the Northern District of California extended its vacatur until February 6, 2009.

A General Permit is a NPDES permit that is issued to cover a certain class of dischargers or discharges, as opposed to an individual permit which cover a single discharger.  Since the Clean Water Act requires a NPDES permit for all discharges into the waters of the United States, this General Permit will make legal for incidental discharges to occur, so long as they follow the BMPs outlined in the General Permit.

Only vessels greater than or equal to 300 gross tons and which have the capacity to hold or discharge more than 2113 gallons of ballast must submit a Notice of Intent to receive permit coverage.  These Notices of Intent are required to be filed no earlier thn June 19, 2009.  All other vessels subject to the General Permit are not required to submit a Notice of Intent, but they are still required to follow the BMPs in the General Permit, including the inspection, monitoring, reporting and recordkeeping requirements.

As final matter, the same environmental groups that initially got the exemption overturned, have filed petitions for review in the Ninth Circuit seeking the vacatur of the General Permit.  However, until such time as the Court rules, vessel owners will be required to comply with the General Permit.