Under the Clean Water Act, the discharge of any pollutant from a point source to waters of the U.S. without a permit is unlawful. EPA rules in 1973 exempted discharges incidental to the normal operation of a vessel. But the court ruled that vessels are point sources in Northwest Envt’l Adv. v. EPA, 537 F.3d 1006 (9th Cir., 2008). In response, USEPA issued a Vessel General Permit (“VGP”) to authorize discharges from vessels used for transportation upon the filing of a Notice of Intent (“NOI”). Vessels of less than 30 tons are covered without an NOI. The VGP imposes conditions on ballast water and other vessel discharges.
Under section 401 of the Act, EPA may not issue a permit for discharges into waters within a state unless the state certifies that the discharge will also comply with state law. States may include in their 401 certifications specific conditions that become terms of the federal permit. Some states waived certification, some added standards of the International Maritime Organization, and others imposed more stringent terms. In its 401 certification for the VGP, New York added these more stringent conditions:
Ballast Water Exchange (“BWE”): Unless it meets condition two or three below, any vessel entering New York waters whose voyage originated from within the exclusive economic zone of the U.S. must conduct a BWE at least 50 nautical miles from shore in water at least 200 meters deep. A BWE is at least one emptyrefill cycle of each ballast tank. If BWE is impractical, vessels may use flow-through exchanges or flushing. Either way, the final salinity must be least 30 parts per thousand (ppt), and vessels must measure it.
Existing Vessels: By Jan. 1, 2012, all VGP-covered vessels in New York waters must treat ballast water to meet the standards in Table 1 below.
New Vessels: VGP-covered vessels constructed on or after Jan. 1, 2013, must use ballast water treatment systems to meet the standards in Table 2 below.
Graywater: As of Jan. 1, 2012, no discharges of graywater are allowed into New York waters within three nautical miles of the shoreline, or in Long Island Sound or New York Harbor.
Bilge Water: As of Jan. 1, 2012, no VGPcovered vessel may discharge bilge water into New York waters. The VGP is available at http://www.epa.gov/ New York’s 401 conditions are in section 6.22 of the VGP.