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                                                       Calendar No. 832
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-398
======================================================================
 
                       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:

           *       *       *       *       *       *       *

                              ----------                              


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.

           *       *       *       *       *       *       *

                              ----------