Free and Clean

By Jennifer McKay

The recreational boating community achieved a great victory when, in July of this year, the Clean Boating Act of 2008 was signed into law. This new act amends the Clean Water Act to provide a statutory exemption for recreational vessels from the National Pollutant Discharge Elimination System (NPDES) permitting program.

Wait a minute.

Statutory exemption?

Pollutant discharge?

What does all of this mean? In simplest terms, it means boating will remain the free, unencumbered pastime it’s always been. But to fully understand this act and what it means for boaters, we need
to start at the beginning.

The Clean Water Act, administered by the United States Environmental Protection Agency (EPA), was originally passed in 1972 and its objective was “to restore and maintain the chemical, physical and biological integrity of the nation’s waters.” Under the Clean Water Act, any discharges of pollutants from a point source (such as a water treatment plant, for example) to the surface waters of the United States require a permit under the NPDES program.

A year after the Clean Water Act was enacted, the EPA issued a rule exempting certain marine discharges from the Clean Water Act and specifically the NPDES permitting process. As a result, the ballast of both recreational boats and commercial ships was exempt from this strict regulation and permitting.

This exemption remained the status quo for decades. Meantime, concerns about the impacts associated with ballast water discharges were growing. Concern about the devastating effects of aquatic invasive species introductions via ballast water discharge culminated in the filing of a lawsuit against the EPA.

The lawsuit was a challenge to the 1973 exemption for certain marine discharges. Environmental organizations filed suit on the basis that ballast water discharges have led to the introduction of numerous aquatic invasive species resulting in extensive damage to the biological integrity of the waters of the United States, just the type of injury the Clean Water Act was meant to address.

In March of 2005, a California court ruled in favor of the environmental groups and the six states that joined the suit, including the Great Lakes states of New York, Illinois, Michigan, Minnesota and Pennsylvania. The court concluded that the EPA had exceeded its authority under the Clean Water Act in exempting ballast water discharges from permitting requirements. The court ordered the EPA to develop an operational discharge permit for vessels to be effective by September 30, 2008.

The ruling in and of itself is a huge victory—after all, invasive species are the number two threat to biodiversity worldwide, second only to habitat loss. They have crippled many marine and freshwater ecosystems, especially the Great Lakes. Unlike many conventional pollutants, the introduction of invasive species often has irreversible consequences. The federal government had failed throughout the years to propose effective solutions to deal with ballast water discharges, and this ruling provided the grounds to begin that much needed process.

While the focus of the litigation was on commercial vessels discharging ballast water that contain invasive species, the court’s ruling applied to millions of recreational boats as well. The court decision basically required the EPA to develop a permit system that regulates discharge for all boats, even recreational boats that do not carry ballast water.

As a result of the court ruling, the EPA proposed two vessel discharge permits under the NPDES program. Together, they would regulate all discharges from all vessels, including everything from engine cooling water to deck runoff, from gray water to ballast water. In response to this proposed permit, Congress introduced, and eventually passed, the Clean Boating Act, which states that a permit is not required for discharges incidental to the normal operation of recreational vessels.

The significance of this bill goes far beyond the actual language of the law. On the surface, this is a huge win as recreational boaters will be spared the confusion and headaches—as well as the potential expenses—that would have come along with the EPA’s proposed permit. More importantly though, enactment of this legislation is an indication that recreational boaters finally have been recognized as a key stakeholder in the lakes and that boaters can have a significant role to play in the management of our water resources.

There are approximately 18 million recreational boaters in the United States; 4.3 million of those registered boaters are in the Great Lakes. Given the large number of boaters in the Great Lakes and the importance of the recreational boating community to the economic vitality of the region, boaters should have been recognized as a key stakeholder long ago. However, the community has failed to capitalize on its numbers and potential voice, and has subsequently been largely ignored. Hopefully, this will now change.

The momentum from this substantial victory can continue and even be built upon. In particular, boaters and anglers who are dependent upon the health and abundance of our natural resources should be on the forefront advocating for protections. For us in the Great Lakes region, this means utilizing this collective voice to join in the efforts to restore and protect our magnificent waters.

Recently, there have been many successful Great Lakes initiatives that are building toward Great Lakes restoration. However, the ultimate goal of achieving large-scale comprehensive restoration has not been met. Congress now has the opportunity to increase its effort by committing to restoring the Great Lakes for the benefit of the entire nation. Recreational boaters, who have the most to gain (and the most to lose) in regards to Great Lakes restoration and protection, should learn a valuable lesson from passage of the Clean Boating Act: we can work together through a collective voice to be a powerful force that can be used to protect the very lifeblood of our boating experiences.

However, in order for the recreational boating community to maintain recognition as a key stakeholder and have an effective voice, boaters must prove they were worthy of the exemption provided by the Clean Boating Act. It is incumbent upon us to show everyone we deserved it by voluntarily taking additional actions to be good stewards of our water resources.

While the intention of the lawsuit that led to passage of the Clean Boating Act was to target ballast water discharges, it does not mean that recreational boaters do not play a part in the spread of invasive species. Recreational vessels can play a critical role in the spread of invasive species in freshwater systems through organisms inadvertently retained in live wells, bait wells, bilge pumps, motors and on boat hulls, trailers and equipment. Routine boating practices have spread invasive species over a broad geographic range before the invader is even recognized and acknowledged as a problem. While the focus of regulatory action should be on ballast water discharges, boaters who use and rely on the waters should take every precaution possible to prevent further exacerbation of the problem. Therefore, we must voluntarily adopt guidelines and take extra steps to ensure that our precious waterways are not overrun by aquatic nuisance species.

Recreational boaters can help to control the spread of invasive species by taking simple actions every time their boats are removed from the water.

• Remove visible mud, plants, fish or animals from your boat, trailer or other equipment (anchor, centerboards, props, etc.) before leaving the water body.
• Drain all water from live wells, bilges, motor, transom and other containers before leaving launch area.
• Do not release live bait or aquarium pets into any waters.
• Wash your boat, trailer and equipment thoroughly with hot tap water (104 degrees or higher) to remove plants and organisms.
• Allow your boat to dry for a minimum of five days in a sunny location before transferring into a new body of water.

While there is certainly reason for recreational boaters to celebrate, the Clean Boating Act is not necessarily the end of this issue. Although recreational vessels are currently exempt from the NPDES program, the EPA is required to take action which could lead to regulation in the future. The Clean Boating Act requires that the EPA determine if there are management practices that could be utilized by recreational vessels to mitigate adverse impacts associated with discharges. If boaters fail to acknowledge the potential negative impacts recreational boating can impose on our waters, we could destroy the very thing that sustains our enjoyment.

If we voluntarily adopt best management practices in an effort to protect our waterways and fisheries, there will be no need for future regulation of recreational boaters. It should be the people who are out there enjoying the region’s waters who appreciate the need to protect them to continue their family tradition.

We now need to prove to Congress and the country that we deserve the exemption provided by the Clean Boating Act. We can do this by being good stewards of our precious water resources and making the small, extra effort to ensure the health of our waters and our boating legacy are preserved for generations to come.