Clean Water Act

On March 11, 2009, the EPA issued a Notice Regarding National Pollutant Discharge Elimination System (NPDES) General Permit for Discharges Incidental to the Normal Operation of a Vessel. This Notice affects the VGP for the States of New Jersey, Illinois and California.

EPA previously announced the final NPDES general permit for discharges incidental to the normal operation of vessels, also referred to as the Vessel General Permit (VGP) on December 29, 2008. The permit became effective December 19, 2008.  Today’s notice of availability provides notice of EPA’s deletion of specific State section 401 certification conditions from Part 6 of the VGP for the States of New jersey, Illinois, and California.

Through the certification process under the Clean Water Act, States were given the opportunity to add conditions to the permit they believe are necessary to ensure that the permit complies with the Clean Water Act and other appropriate requirements of State law, including State water quality standards.  Since the effective date of the VGP, New Jersey, Illinois and California all modified their certification for the VGP, deleting certification conditions:

  • New Jersey deleted certification conditions 1 and 2;
  • Illinois deleted certification condition 9;
  • California deleted certification conditions 1, 2, 5, 7, 8, 9, 10, 13, 14, 15, and 7.1 and 7.2 from certification condition 16 and Attachments 4, 5, and 6 from certification 17.

Since pursuant to Clean Water Act regulations (40 CFR 124.55(b)) the EPA may, at the request of a permittee, modify the VGP based on a modified certification received after final agency action on the permit “only to the extent necessary to delete any conditions based on a condition in a certification invalidated by a court of competent jurisdiction or by an appropriate State board or agency, EPA has removed these deleted certification conditions from the VGP.

EPA’s letters notifying the requesting permittees that their requests to delete the permit conditions were granted, can be found in the docket for the VGP (Docket ID no. EPA-HQ-OW-2008-0055)

A copy of the VGP reflecting those deletions can found on the EPA’s website:


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.