[Senate Report 110-398]
[From the U.S. Government Publishing Office]
Calendar No. 832
110th Congress Report
SENATE
2d Session 110-398
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CLEAN BOATING ACT OF 2008
_______
June 23, 2008.--Ordered to be printed
_______
Mrs. Boxer, from the Committee on Environment and Public Works,
submitted the following
R E P O R T
[To accompany S. 2766]
together with
ADDITIONAL VIEWS
[Including cost estimate of the Congressional Budget Office]
The Committee on Environment and Public Works, to which was
referred a bill (S. 2766) to amend the Federal Water Pollution
Control Act to address certain discharges incidental to the
normal operation of a recreational vessel, having considered
the same, reports favorably thereon and recommends that the
bill do pass.
Purposes of the Legislation
The purposes of the Clean Boating Act of 2008 (the Act) are
to codify the exclusion of discharges incidental to the normal
operation of recreational vessels from permitting requirements
under the Federal Water Pollution Control Act, 33 U.S.C.
Sec. 1251 et seq. (commonly known as the Clean Water Act), and
to require management practices and performance standards for
discharges from such vessels.
General Statement and Background
The Act amends the Clean Water Act to provide that no
permit shall be required by the EPA Administrator under the
national pollutant discharge elimination system (NPDES) for
certain categories of discharges from recreational vessels. The
following discharges from recreational vessels would be
excluded from permit requirements: graywater; bilge water;
cooling water; weather deck runoff; oil water separator
effluent; effluent from properly functioning marine engines;
and any other discharge that is incidental to the normal
operation of such vessels.
In 1973 EPA promulgated a regulation that excluded
discharges incidental to the normal operation of vessels from
NPDES permitting requirements. EPA's denial of a petition
seeking repeal of that regulation was published in September
2003 and subsequently challenged in the U.S. District Court for
the Northern District of California. In September 2006 the
court issued an order revoking the applicable regulatory
exclusion, effective September 30, 2008. EPA estimates that the
court's order could affect over 13 million recreational
vessels.
The Act provides that the Clean Water Act section 402
permit requirements, 33 U.S.C. Sec. 1342, shall not apply to
recreational vessels. A ``recreational vessel'' is defined as
any vessel that is leased, rented, or chartered to a person for
that person's pleasure or that is manufactured or used
primarily for pleasure, excluding vessels that are subject to
Coast Guard inspection and that are engaged in commercial use
or that carry paying passengers.
The Act requires the EPA Administrator to: (1) develop
management practices for recreational vessels to mitigate the
adverse impacts on waters of the United States of discharges
incidental to normal vessel operation (excluding sewage) in any
case in which the Administrator determines that the use of
those practices is reasonable and practicable; and (2)
promulgate federal standards of performance (which may
distinguish among vessel types, classes, and sizes, as well as
new and existing vessels) for each discharge for which such a
management practice is developed. The Act calls for the
Secretary of the Department in which the Coast Guard is
operating to promulgate regulations governing the design,
construction, installation, and use of management practices for
recreational vessels as necessary to meet such standards of
performance. It prohibits operation of recreational vessels in
or discharges from those vessels into waters of the United
States or waters of the contiguous zone, other than in
compliance with such standards.
Section-by-Section Analysis
Section 1. Short title
Section 1 would provide that the Act may be cited as the
``Clean Boating Act of 2008''.
Section 2. Discharges incidental to the normal operation of
recreational vessels
Section 2 would amend Section 402 of the Clean Water Act,
33 U.S.C. Sec. 1342, by adding a new subsection (r), to provide
that no permit shall be required under the Clean Water Act by
the EPA Administrator (or by a State, in the case of an
approved permit program under subsection 402(b)), for the
discharge of any graywater, bilge water, cooling water, weather
deck runoff, oil water separator effluent, or effluent from
properly functioning marine engines, or any other discharge
that is incidental to the normal operation of a vessel, if the
discharge is from a recreational vessel.
Section 3. Definition
Section 3 would define the term ``recreational vessel'' to
mean any vessel that is (a) manufactured or used primarily for
pleasure; or (b) leased, rented, or chartered to a person for
the pleasure of that person. It would exclude from the
definition of the term ``recreational vessel'' any vessel that
is subject to Coast Guard inspection and that (i) is engaged in
commercial use; or (ii) carries paying passengers.
Section 4. Management practices for recreational vessels
Section 4 would add a new subsection (o) to Section 312 of
the Clean Water Act, 33 U.S.C. Sec. 1322, that would apply to
any discharge, other than a discharge of sewage, from a
recreational vessel that is: (a) incidental to the normal
operation of the vessel; and (b) exempt from permitting
requirements under Section 2 (new Section 402(r) of the Clean
Water Act).
The EPA Administrator, in consultation with the Secretary
of the department in which the Coast Guard is operating, the
Secretary of Commerce, and interested States, is required to
determine the discharges incidental to the normal operation of
a recreational vessel for which it is reasonable and
practicable to develop management practices to mitigate adverse
impacts on the waters of the United States. Such determinations
would be promulgated in accordance with the Administrative
Procedure Act, 5 U.S.C. Sec. 553. In making those
determinations, the Administrator would be required to
consider: (i) the nature of the discharge; (ii) the
environmental effects of the discharge; (iii) the
practicability of using a management practice; (iv) the effect
that the use of a management practice would have on the
operation, operational capability, or safety of the vessel; (v)
applicable Federal and State law; (vi) applicable international
standards; and (vii) the economic costs of the use of the
management practice.
Initial determinations must be made not later than 1 year
after the date of enactment. Every 5 years thereafter, the
Administrator is required to review the determinations and, if
necessary, revise the determinations based on any new
information available to the Administrator.
The Administrator would develop management practices for
recreational vessels in any case in which the Administrator
determines that the use of those practices is reasonable and
practicable.
For each discharge for which a management practice is
developed, the Administrator, in consultation with the
Secretary of the department in which the Coast Guard is
operating, the Secretary of Commerce, other interested Federal
agencies, and interested States, would promulgate, in
accordance with the Administrative Procedure Act, 5 U.S.C.
Sec. 553, Federal standards of performance for each management
practice required with respect to the discharge. In
promulgating those standards, the Administrator is authorized
to take into account considerations including the classes,
types and sizes of vessels, and whether the vessels are new or
existing. The Administrator is also required to consider the
factors in paragraph (2)(B), including: (i) the nature of the
discharge; (ii) the environmental effects of the discharge;
(iii) the practicability of using a management practice; (iv)
the effect that the use of a management practice would have on
the operation, operational capability, or safety of the vessel;
(v) applicable Federal and State law; (vi) applicable
international standards; and (vii) the economic costs of the
use of the management practice. The Administrator would have
authority to provide for a waiver of the applicability of the
standards as necessary or appropriate to a particular class,
type, age, or size of vessel.
The standards of performance for a management practice are
required to be promulgated not later than 1 year after the date
of a determination that the management practice is reasonable
and practicable. Every 5 years thereafter the Administrator is
required to review the standards and, if necessary, revise the
standards based on any new information available to the
Administrator.
The Secretary of the department in which the Coast Guard is
operating would be required to promulgate regulations governing
the design, construction, installation, and use of management
practices for recreational vessels as are necessary to meet the
standards of performance promulgated, as soon as practicable
after the Administrator promulgates such standards, but not
later than 1 year after the date on which the Administrator
promulgates the standards.
New subsection (o) would not affect the application of
section 311 of the Clean Water Act to discharges incidental to
the normal operation of a recreational vessel.
After the effective date of the regulations promulgated by
the Secretary of the department in which the Coast Guard is
operating, the owner or operator of a recreational vessel would
be prohibited from operating in, or making any discharge
incidental to the normal operation of the vessel into, the
waters of the United States or the waters of the contiguous
zone, if the owner or operator of the vessel is not using any
applicable management practice meeting standards established
under Section 4.
Legislative History
S. 2766 was introduced by Senator Nelson of Florida and
Senator Boxer on March 13, 2008. They were later joined by the
following cosponsors: Senators Whitehouse, Reed, Isakson,
Vitter, Cardin, Mikulski, Burr, Snowe, Crapo, Chambliss,
Cochran, Collins, Levin, Voinovich, Stabenow, Craig, Dole,
Feinstein, Corker, Bayh, Coleman, Landrieu, Specter, Kohl,
Wicker, Dodd, Carper, Bond, Brown, Webb, Bunning, Klobuchar,
Schumer, Martinez, Lugar, Kerry, and Allard (as of June 18,
2008). The bill was read twice and referred to the Senate
Committee on Environment and Public Works. The Committee met on
May 21, 2008, when S. 2766 was ordered favorably reported
without amendment by a voice vote.
Hearings
The Committee did not hold hearings on S. 2766 during the
110th Congress.
Rollcall Votes
There were no rollcall votes. The Committee on Environment
and Public Works met to consider S. 2766 on May 21, 2008. A
quorum of the Committee being present, S. 2766 was reported
favorably without amendment by a voice vote.
Regulatory Impact Statement
In compliance with section 11(b)(2) of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill would relieve owners or operators of approximately 13
million recreational boats of certain current court-ordered
permitting requirements under the current Clean Water Act. As
noted below, the Congressional Budget Office has concluded that
the bill will not establish any private-sector mandates.
Mandates Assessment
In compliance with the Unfunded Mandates Reform Act of 1995
(Public Law 104-4), the Committee finds, consistent with the
determination of the Congressional Budget Office, that S. 2766
would impose no Federal intergovernmental unfunded mandates on
State, local or tribal governments. The Committee further
agrees with the Congressional Budget Office that the bill does
not impose private sector mandates.
Congressional Budget Office Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 2766--Clean Boating Act of 2008
S. 2766 would direct the Environmental Protection Agency
(EPA) to investigate discharges of pollution from recreational
boats to determine what types should be regulated and to
promulgate standards of performance for managing those
discharges. The U.S. Coast Guard (USCG) would be responsible
for enforcing the standards developed by the EPA.
CBO estimates that implementing S. 2766 would have no
significant effect on the federal budget because the EPA is
already required to regulate discharges from recreational boats
that it deems should be regulated, and either that agency or
the USCG must enforce such regulations. The two agencies are
currently carrying out those responsibilities. Enacting the
legislation would not affect revenues or direct spending.
The bill contains no intergovernmental or private-sector
mandates and would impose no costs on state, local, or tribal
governments.
On June 3, 2008, CBO transmitted a cost estimate for H.R.
5949, the Clean Boating Act of 2008, as ordered reported by the
House Committee on Transportation and Infrastructure on May 15,
2008. The two bills are nearly identical, and the CBO cost
estimates are the same.
The CBO staff contact for this estimate is Deborah Reis.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
SENATOR INHOFE'S ADDITIONAL VIEWS
Senator Inhofe agrees that legislation is necessary to
clarify and make permanent the long standing and common sense
recreational vessel exemption from the National Pollution
Discharge Elimination System (NPDES) permitting requirement
under the Clean Water Act (CWA) for discharges incidental to
the normal operation of a vessel into navigable waters.
However, this ``incidental discharge'' exemption has
historically encompassed both recreational and commercial
vessels and has been in place for the life of the CWA without
any attempts by Congress to amend or revise the regulatory
exemption. Additionally, no sound evidence indicates that
negative environmental impacts have resulted from this
exemption by either recreational or commercial vessels.
Therefore, in Senator Inhofe's view a straightforward,
uninhibited incidental discharge exemption for both
recreational and commercial vessels is necessary and prudent.
Language in S. 2766 requires that the Administrator of the
Environmental Protection Agency in consultation with the
Secretary of the Coast Guard must review incidental discharges
and recommend best management practices for recreational
vessels. The Secretary of the Coast Guard shall promulgate
performance standard regulations encompassing the Administrator
of the Environmental Protection Agencies' recommendations.
Senator Inhofe believes that increasing agency burdens with
insufficient reason is costly and unnecessary. In addition, all
recreational boat owners might be required to purchase
expensive and superfluous equipment for pre-existing vessels in
order to meet requirements created by this act. Section 4
undermines the basic statutory requisite of eliminating
needless government regulation and vessel owner burden.
Changes in Existing Law
In compliance with section 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill
as reported are shown as follows: Existing law proposed to be
omitted is enclosed in [black brackets], new matter is printed
in italic, existing law in which no change is proposed is shown
in roman:
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FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
Sec. 101. (a) The objective of this Act is to restore and
maintain the chemical, physical, and biological integrity of
the Nation's waters. In order to achieve this objective it is
hereby declared that, consistent with the provisions of this
Act--
(1)* * *
* * * * * * *
Sec. 301. (a) Except as in compliance with this section and
sections 302, 306, 307, 318, 402, and 404 of this Act, the
discharge of any pollutant by any person shall be unlawful.
(b) In order to carry out the objective of this Act there
shall be achieved--
(1)(A) * * *
* * * * * * *
Sec. 312. (a) For the purpose of this section, the term--
(1) ``new vessel'' includes every description of
watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on
the navigable waters, the construction of which is
initiated after promulgation of standards and
regulations under this section;
(2) * * *
* * * * * * *
(o) Management Practices for Recreational Vessels.--
(1) Applicability.--This subsection applies to any
discharge, other than a discharge of sewage, from a
recreational vessel that is--
(A) incidental to the normal operation of the
vessel; and
(B) exempt from permitting requirements under
section 402(r).
(2) Determination of discharges subject to management
practices.--
(A) Determination.--
(i) In general.--The Administrator,
in consultation with the Secretary of
the department in which the Coast Guard
is operating, the Secretary of
Commerce, and interested States, shall
determine the discharges incidental to
the normal operation of a recreational
vessel for which it is reasonable and
practicable to develop management
practices to mitigate adverse impacts
on the waters of the United States.
(ii) Promulgation.--The Administrator
shall promulgate the determinations
under clause (i) in accordance with
section 553 of title 5, United States
Code.
(iii) Management practices.--The
Administrator shall develop management
practices for recreational vessels in
any case in which the Administrator
determines that the use of those
practices is reasonable and
practicable.
(B) Considerations.--In making a
determination under subparagraph (A), the
Administrator shall consider--
(i) the nature of the discharge;
(ii) the environmental effects of the
discharge;
(iii) the practicability of using a
management practice;
(iv) the effect that the use of a
management practice would have on the
operation, operational capability, or
safety of the vessel;
(v) applicable Federal and State law;
(vi) applicable international
standards; and
(vii) the economic costs of the use
of the management practice.
(C) Timing.--The Administrator shall--
(i) make the initial determinations
under subparagraph (A) not later than 1
year after the date of enactment of
this subsection; and
(ii) every 5 years thereafter--
(I) review the
determinations; and
(II) if necessary, revise the
determinations based on any new
information available to the
Administrator.
(3) Performance standards for management practices.
(A) In general.--For each discharge for which
a management practice is developed under
paragraph (2), the Administrator, in
consultation with the Secretary of the
department in which the Coast Guard is
operating, the Secretary of Commerce, other
interested Federal agencies, and interested
States, shall promulgate, in accordance with
section 553 of title 5, United States Code,
Federal standards of performance for each
management practice required with respect to
the discharge.
(B) Considerations.--In promulgating
standards under this paragraph, the
Administrator shall take into account the
considerations described in paragraph (2)(B).
(C) Classes, types, and sizes of vessels.--
The standards promulgated under this paragraph
may--
(i) distinguish among classes, types,
and sizes of vessels;
(ii) distinguish between new and
existing vessels; and
(iii) provide for a waiver of the
applicability of the standards as
necessary or appropriate to a
particular class, type, age, or size of
vessel.
(D) Timing.--The Administrator shall--
(i) promulgate standards of
performance for a management practice
under subparagraph (A) not later than 1
year after the date of a determination
under paragraph (2) that the management
practice is reasonable and practicable;
and
(ii) every 5 years thereafter--
(I) review the standards; and
(II) if necessary, revise the
standards, in accordance with
subparagraph (B) and based on
any new information available
to the Administrator.
(4) Regulations for the use of management
practices.--
(A) In general.--The Secretary of the
department in which the Coast Guard is
operating shall promulgate such regulations
governing the design, construction,
installation, and use of management practices
for recreational vessels as are necessary to
meet the standards of performance promulgated
under paragraph (3).
(B) Regulations.--
(i) In general.--The Secretary shall
promulgate the regulations under this
paragraph as soon as practicable after
the Administrator promulgates standards
with respect to the practice under
paragraph (3), but not later than 1
year after the date on which the
Administrator promulgates the
standards.
(ii) Effective date.--The regulations
promulgated by the Secretary under this
paragraph shall be effective upon
promulgation unless another effective
date is specified in the regulations.
(iii) Consideration of time.--In
determining the effective date of a
regulation promulgated under this
paragraph, the Secretary shall consider
the period of time necessary to
communicate the existence of the
regulation to persons affected by the
regulation.
(5) Effect of other laws.--This subsection shall not
affect the application of section 311 to discharges
incidental to the normal operation of a recreational
vessel.
(6) Prohibition relating to recreational vessels.--
After the effective date of the regulations promulgated
by the Secretary of the department in which the Coast
Guard is operating under paragraph (4), the owner or
operator of a recreational vessel shall neither operate
in nor discharge any discharge incidental to the normal
operation of the vessel into, the waters of the United
States or the waters of the contiguous zone, if the
owner or operator of the vessel is not using any
applicable management practice meeting standards
established under this subsection.
* * * * * * *
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
Sec. 402. (a)(1) Except as provided in sections 318 and 404
of this Act, the Administrator may, after opportunity for
public hearing, issue a permit for the discharge of any
pollutant, or combination of pollutants, notwithstanding
section 301(a), upon condition that such discharge will meet
either (A) all applicable requirements under sections 301, 302,
306, 307, 308, and 403 of this Act, or (B) prior to the taking
of necessary implementing actions relating to all such
requirements, such conditions as the Administrator determines
are necessary to carry out the provisions of this Act.
(2) * * *
* * * * * * *
(q) Combined Sewer Overflows.--
(1) Requirement for permits, orders, and decrees.--
Each permit, order, or decree issued pursuant to this
Act after the date of enactment of this subsection for
a discharge from a municipal combined storm and
sanitary sewer shall conform to the Combined Sewer
Overflow Control Policy signed by the Administrator on
April 11, 1994 (in this subsection referred to as the
``CSO control policy'').
(2) * * *
* * * * * * *
(r) Discharges Incidental to the Normal Operation of
Recreational Vessels.--No permit shall be required under this
Act by the Administrator (or a State, in the case of a permit
program approved under subsection (b)) for the discharge of any
graywater, bilge water, cooling water, weather deck runoff, oil
water separator effluent, or effluent from properly functioning
marine engines, or any other discharge that is incidental to
the normal operation of a vessel, if the discharge is from a
recreational vessel.
Sec. 501. (a) The Administrator is authorized to prescribe
such regulations as are necessary to carry out his functions
under this Act.
(b) * * *
* * * * * * *
Sec. 502. Except as otherwise specifically provided, when
used in this Act:
(1) * * *
* * * * * * *
(24) Oil and gas exploration and production.--The
term ``oil and gas exploration, production, processing,
or treatment operations or transmission facilities''
means all field activities or operations associated
with exploration, production, processing, or treatment
operations, or transmission facilities, including
activities necessary to prepare a site for drilling and
for the movement and placement of drilling equipment,
whether or not such field activities or operations may
be considered to be construction activities.
(25) Recreational vessel.--
(A) In general.--The term ``recreational
vessel'' means any vessel that is--
(i) manufactured or used primarily
for pleasure; or
(ii) leased, rented, or chartered to
a person for the pleasure of that
person.
(B) Exclusion.--The term ``recreational
vessel'' does not include a vessel that is
subject to Coast Guard inspection and that--
(i) is engaged in commercial use; or
(ii) carries paying passengers.
* * * * * * *
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