On May 3, 2013, Northwest Environmental Advocates (NWEA) and the Center for Biological Diversity (CBD) filed a petition requesting the US Court of Appeals for the Ninth Circuit to review the final 2013 National Pollutant Discharge Elimination System (NPDES) Vessel General Permit (VGP).1 The 2013 VGP, issued under the Clean Water Act (CWA) by the US Environmental Protection Agency (EPA or Agency) on March 28, 2013, authorizes discharges incidental to the normal operation of commercial vessels greater than or equal to 79 feet in length.2 The VGP, which becomes effective on December 19, 2013, includes, for the first time, numeric effluent limits applicable to vessels with ballast water tanks, placing a limit on the number of living organisms per cubic meter of ballast water discharged by a vessel. NWEA has advocated for a "zero discharge" limit.
In the petition for review, NWEA and CBD note generally as a cause of their action "a substantial interest in the EPA’s issuance of the VGP because … [it] will have adverse impacts on the Petitioners’ and their members’ interests in the unique aquatic ecosystems found in waters of the United States."3 Although the petition does not identify the specific claims that the groups intend to bring, the groups have advocated for a "zero discharge" limit, or zero detectable living organisms, as the VGP’s numeric limit for ballast water discharges.4 NWEA asserts that "EPA failed to place the burden of controlling invasive species on those who create the problem, instead of those who are suffering the consequences of it."5 NWEA also asserts that "[i]n this new permit EPA has compounded the high environmental and economic costs associated with existing invasive species by avoiding Clean Water Act requirements that would prevent new invasions."6
NWEA brought the original litigation that led to EPA’s regulation of vessel discharges under the VGP. EPA issued the 2008 VGP as a NPDES permit in response to a Ninth Circuit decision overturning EPA’s prior exemption for discharges incidental to normal vessel operations.7 Shipping and other industry groups have expressed concern over difficulties involved in regulating mobile sources, such as vessels that regularly cross the waters of many states, under the NPDES permit program. These industries have expressed frustration that conditions imposed by the CWA Section 401 state certification process, and the overlap of VGP conditions with US Coast Guard requirements, can result in a confusing, impractical and costly patchwork of vessel regulations. EPA introduced the draft 2013 VGP on November 30, 2011.
The 2013 VGP, which will replace the 2008 VGP, continues to regulate 26 specific discharge categories addressed by the 2008 VGP. The 2013 VGP’s numeric ballast water discharge limits generally align with the numeric standards set by ballast water management regulations issued by the US Coast Guard in 2012 and with international standards. The VGP places a stringent limit on the number of living organisms per cubic meter of ballast water that a vessel can discharge. 8 The goal of these limits is to achieve significant reductions in the number of living organisms discharged via ballast water into waters subject to the CWA and covered by the VGP.9 EPA initially proposed a stricter effluent limit for ballast water, but modified the limit in the final VGP based on the absence of sufficient technology to detect and treat organisms at the originally proposed levels. In addition, EPA stated that it did not believe a "zero detection" standard would enhance environmental protection beyond that contained in the final VGP.10
This (and potentially other) litigation involving the VGP is of particular concern to vessel, port, energy and other industries that engage in or rely upon commercial vessel operations, and may be of wider interest based on issues involving the regulation of living organisms as pollutants under the CWA.