[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                      DISCHARGES INCIDENTAL TO THE
                NORMAL OPERATION OF A COMMERCIAL VESSEL

=======================================================================

                               (110-139)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                    WATER RESOURCES AND ENVIRONMENT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 12, 2008

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure


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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York             VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida               STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California               FRANK A. LoBIONDO, New Jersey
EDDIE BERNICE JOHNSON, Texas         JERRY MORAN, Kansas
GENE TAYLOR, Mississippi             GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland         ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California        HENRY E. BROWN, Jr., South 
LEONARD L. BOSWELL, Iowa             Carolina
TIM HOLDEN, Pennsylvania             TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington              TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington              SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts    BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York          JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine            SHELLEY MOORE CAPITO, West 
BRIAN HIGGINS, New York              Virginia
RUSS CARNAHAN, Missouri              JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado            MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            TED POE, Texas
NICK LAMPSON, Texas                  DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio               CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              JOHN R. `RANDY' KUHL, Jr., New 
BRUCE L. BRALEY, Iowa                York
JASON ALTMIRE, Pennsylvania          LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota           CHARLES W. BOUSTANY, Jr., 
HEATH SHULER, North Carolina         Louisiana
MICHAEL A. ARCURI, New York          JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona           CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania  THELMA D. DRAKE, Virginia
JOHN J. HALL, New York               MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin               VERN BUCHANAN, Florida
STEVE COHEN, Tennessee               ROBERT E. LATTA, Ohio
JERRY McNERNEY, California
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey
VACANCY

                                  (ii)

  
?

            Subcommittee on Water Resources and Environment

                EDDIE BERNICE JOHNSON, Texas, Chairwoman

GENE TAYLOR, Mississippi             JOHN BOOZMAN, Arkansas
BRIAN BAIRD, Washington              JOHN J. DUNCAN, Jr., Tennessee
JERRY F. COSTELLO, Illinois          WAYNE T. GILCHREST, Maryland
TIMOTHY H. BISHOP, New York          VERNON J. EHLERS, Michigan
BRIAN HIGGINS, New York              FRANK A. LoBIONDO, New Jersey
RUSS CARNAHAN, Missouri              GARY G. MILLER, California
JOHN T. SALAZAR, Colorado            ROBIN HAYES, North Carolina
MAZIE K. HIRONO, Hawaii              HENRY E. BROWN, Jr., South 
HEATH SHULER, North Carolina         Carolina
HARRY E. MITCHELL, Arizaon           TODD RUSSELL PLATTS, Pennsylvania
JOHN J. HALL, New York               BILL SHUSTER, Pennsylvania
STEVE KAGEN, Wisconsin               CONNIE MACK, Florida
JERRY MCNERNEY, California, Vice     JOHN R. `RANDY' KUHL, Jr., New 
Chair                                York
ELEANOR HOLMES NORTON, District of   CHARLES W. BOUSTANY, Jr., 
Columbia                             Louisiana
BOB FILNER, California               JEAN SCHMIDT, Ohio
ELLEN O. TAUSCHER, California        CANDICE S. MILLER, Michigan
MICHAEL E. CAPUANO, Massachusetts    THELMA D. DRAKE, Virginia
GRACE F. NAPOLITANO, California      ROBERT E. LATTA, Ohio
MICHAEL A. ARCURI, New York          JOHN L. MICA, Florida
VACANCY                                (Ex Officio)
JAMES L. OBERSTAR, Minnesota
  (Ex Officio)

                                 (iii)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................   vii

                               TESTIMONY

Fisk, Ph.D., Andrew, Bureau Director, Land & Water Quality, Maine 
  Department of Environmental Protection.........................     7
Hanlon, James, Director, Office of Wastewater Management, U.S. 
  Environmental Protection Agency................................     7
Metcalf, Kathy, Director, Chamber of Shipping of America, on 
  behalf of the Shipping Industry Ballast Water Coalition........     7
Reddy, Ph.D., Christopher M., Associate Scientist, Marine 
  Chemistry and Geochemistry, Woods Hole Oceanographic 
  Institution....................................................     7
Walker, Ph.D., William W., Executive Director, Mississippi 
  Department of Marine Resources.................................     7

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Boozman, Hon. John, of Arkansas..................................    29
Carnahan, Hon. Russ, of Missouri.................................    33
Costello, Hon. Jerry F., of Illinois.............................    34
Larsen, Hon. Rick, of Washington.................................    35
Mitchell, Hon. Harry E., of Arizona..............................    36
Napolitano, Hon. Grace F., of California.........................    37

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Fisk, Ph.D., Andrew..............................................    77
Hanlon, James A..................................................    81
Metcalf, Kathy...................................................   117
Reddy, Ph.D., Christopher M......................................   161
Walker, Ph.D., William W.........................................   164

                       SUBMISSIONS FOR THE RECORD

Committee on Transportation and Infrastructure, Subcommittee on 
  Water Resources and Environment, Northwest Environmental 
  Advocates v. EPA, No. 03-74795, 9021 (4th Cir. 2008)...........    38
Fisk, Ph.D., Andrew, Bureau Director, Land & Water Quality, Maine 
  Department of Environmental Protection, responses to questions 
  from Rep. Johnson of Texas.....................................    79
Hanlon, James, Director, Office of Wastewater Management, U.S. 
  Environmental Protection Agency:

  Letter to Senator Barbara Boxer from Christopher P. Bliley, 
    Associate Administrator, United States Environmental 
    Protection Agency............................................    91
  Responses to questions from Rep. Boozman.......................   103
  Responses to questions from Rep. Napolitano....................    00
  Responses to questions from Rep. Oberstar......................   110
Metcalf, Kathy, Director, Chamber of Shipping of America, on 
  behalf of the Shipping Industry Ballast Water Coalition:

  Letter to Water Docket Environmental Protection Agency, Re: 
    Development of Clean Water Act National Pollutant Discharge 
    Elimination System Permits for Discharges Incidental to the 
    Normal Operation of Vessels, (Notice of Intent; request for 
    comments and information; Federal Register, June 21, 2007, 
    pgs. 34241 - 34249)..........................................   125
  Responses to questions from Rep. Boozman.......................   148
  Responses to questions from Rep. Oberstar......................   155
Walker, Ph.D., William W., Executive Director, Mississippi 
  Department of Marine Resources, responses to questions from 
  Rep. Boozman...................................................   167

                        ADDITIONS TO THE RECORD

Association of State and Interstate Water Pollution Control 
  Administrators, Harry T. Stewart, President, letter to Linda 
  Boornazian, U.S. Environmental Protection Agency, November 15, 
  2007...........................................................   170
Boat Owners Association of the United States, Margaret B. 
  Podlich, Vice President, Government Relations; National Marine 
  Manufacturers Association, Scott B. Gudes, Vice President, 
  Government Relations; written statement........................   172
Northwest Environmental Advocates, Nina Bell, J.D., Executive 
  Director, written statement....................................   173
Passenger Vessel Association, Edmund B. Welch, Legislative 
  Director, written statement....................................   198

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  DISCHARGES INCIDENTAL TO THE NORMAL OPERATION OF A COMMERCIAL VESSEL

                              ----------                              


                        Thursday, June 12, 2008

                  House of Representatives,
    Committee on Transportation and Infrastructure,
           Subcommittee on Water Resources and Environment,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:03 a.m., in 
Room 2167, Rayburn House Office Building, Hon. Eddie Bernice 
Johnson [Chairwoman of the Subcommittee] presiding.
    Ms. Johnson. The Subcommittee will come to order.
    Good morning. Today, the Subcommittee meets to discuss the 
issue of discharges incidental to the normal operation of a 
commercial vessel that potentially impact the water quality and 
the marine environment, and the appropriate regulatory 
mechanism to address these discharges.
    This hearing is the continuation of a discussion that 
started during the Committee markup of the Clean Boating Act of 
2008, legislation that would address and reduce water pollution 
impacts from recreational boats more aggressively than exists 
today. During the markup, several Members raised the issue of 
how best to address discharges from commercial vessels not 
addressed in the Clean Boating Act. Today's hearing will 
further explore this issue so that we can have a better 
understanding of what types of discharges are covered by the 
term "incidental to the normal operation of a commercial 
vessel."
    What is evident from our efforts to put this hearing 
together is the scarcity of information on exactly what 
pollutants are discharged during the normal operation of 
commercial vessels and their potential impact on the Nation's 
water quality and the marine environment. This is a concern, 
because we must fully understand the potential range of 
pollutants that are discharged from commercial vessels and 
their likely ecological and water quality impacts.
    Before we consider mechanisms to address such pollutants, 
for example, as noted in today's written testimony, from what 
the Agency could pull together from existing reports, EPA 
identified 28 discharges incidental to the normal operation of 
a vessel, including petroleum-based products and other 
chemicals, that can have a significant impact on water quality 
and the marine environment.
    Although many have tried to paint incidental discharges as 
harmless, such as storm water runoff from ship decks, 
discharges incidental to the normal operation of a vessel can 
include substantial quantities of toxic or otherwise 
ecologically damaging pollutants, including the release of 
aquatic invasive species that this Subcommittee has followed 
for years.
    I understand the debate on whether the existing authorities 
contained in section 402 of the Clean Water Act are the 
appropriate authorities to address discharges from vessels, and 
I am certain that this issue will be discussed today. However, 
for decades, the discharge of certain pollutants was not 
addressed by the Clean Water Act. Today's hearing gives us the 
opportunity to better understand the nature of pollutants that 
are discharged from vessels and how we might address these 
pollutants in a national, environmentally sound, and uniform 
manner, including utilizing the Clean Water Act as the 
statutory mechanism.
    I look forward to today's debate, and I yield to my Ranking 
Member, Mr. Boozman.
    Mr. Boozman. Thank you, Madam Chair.
    Today, the Subcommittee is meeting to hear testimony on 
discharges incidental to the normal operation of commercial 
vessels. This certainly is a very, very important topic. I want 
to thank you, Madam Chair, Mr. Oberstar and Mr. Mica for 
helping to bring this forward.
    To clarify the reach of the Clean Water Act and to ensure 
that the EPA is appropriately regulating discharges from 
recreational vessels, my colleague, Steve LaTourette of Ohio, 
offered H.R. 5949, the Clean Boating Act of 2008, providing a 
narrow Clean Water Act exemption for discharges incidental to 
the normal operation of recreational vessels. This legislation 
is vital to avoid the unintended consequences of a questionable 
judicial decision, specifically a 2006 U.S. District Court 
order from the Northern District of California, that revoked 
the EPA's Clean Water Act regulatory exemptions for these types 
of incidental discharges.
    Lawsuits filed by special interest groups and the 
subsequent court decision require the EPA, as of September 30, 
2008, to regulate and issue point source discharge permits 
under the National Pollution Discharge Elimination System, 
NPDES, for gray water and other incidental discharges from an 
estimated 18 million State-registered recreational boats, 
110,000 commercial fishing vessels, and some 53,000 commercial 
freight and tank vessels sailing in the U.S. waters. This will 
lead to a regulatory morass when the owners and operators of 
recreational boats, commercial fishing boats, and large 
commercial shipping vessels have to obtain Clean Water Act 
permits for their activities as simple as merely washing their 
decks.
    Mr. LaTourette's bill, H.R. 5949, takes a more reasonable 
approach to protecting our waters by providing a targeted Clean 
Water Act exemption for recreational vessels. Instead of 
regulating recreational vessels under the Clean Water Act's 
NPDES program, under section 402, it would instead require EPA 
to develop under the Clean Water Act's Vessels Discharges 
program, under section 312, reasonable and practical management 
practices to mitigate the adverse impacts that may result from 
incidental discharges from recreational vessels.
    In addition, the legislation requires EPA to develop 
performance standards for management practices based on the 
class type and size of vessels. However, this legislation does 
not go far enough, as it would only exempt from the NPDES 
permitting incidental discharges from recreational vehicles and 
not commercial emergency or other similar vessels. The reach of 
the court decision could include fireboats, barges, vessels 
that aid barges transiting locks, seaplanes, and maybe even the 
United States Army Corps of Engineers dredge fleet.
    The NPDES permit program is not the appropriate way to 
address the incidental discharges. Instead, the Committee 
should look at section 312 of the Clean Water Act for guidance 
in drafting language for regulating incidental discharges from 
vessels.
    While I support Mr. LaTourette's legislation and was 
pleased the Committee moved the bill at the previous markup, 
the Committee needs to go further and take steps to exempt 
commercial vessels from the NPDES permitting as well. It is 
more appropriate to provide for the development of national, 
enforceable, uniform standards for discharges that are 
incidental to the normal operation of commercial vessels in 
lieu of the use of NPDES permits.
    In the case of fishermen, those who make their living on 
the water, similar to farmers, miners and loggers, like other 
natural resource-dependent jobs, fishermen are not easily 
placed elsewhere in the workforce when bureaucratic red tape or 
overreaching by the courts forces them out of business. When we 
lose jobs on the water, we also lose jobs on the land from the 
boat builders to the ice salesmen.
    As for the commercial shippers, they are at the heart of 
our Nation's interstate and foreign commerce. If we subject 
vessels visiting ports in more than one State to different 
permit requirements in each State that they visit, they will be 
forced to either violate a State's laws or cease making port 
calls in States where the requirements are inconsistent with 
the technology that the vessel has installed in response to 
earlier enacted legislation from another State. There simply is 
no reason to interfere with interstate and foreign commerce in 
such ways, particularly when a more sensible and uniform 
approach is available under section 312.
    Congress should reject this overreach by the court and 
enact sensible legislation that exempts all vessels under the 
NPDES permitting and, instead, allows for a uniform national 
approach.
    Thank you, Chairman Johnson, again, for allowing us to hold 
this very important hearing. I really look forward to the 
testimony of our witnesses.
    I yield back.
    Ms. Johnson. Thank you very much, Mr. Boozman.
    The Chair recognizes Mr. Taylor.
    Mr. Taylor. Thank you, Madam Chairwoman. I want to thank 
you very much and Chairman Oberstar for holding this hearing. I 
want to thank our witnesses for coming from across the country 
to share their views with us.
    Madam Chairman, as a result of one ruling by one West Coast 
judge, this Congress finds itself in a position where we have 
to enact legislation in very short order, or hope that the 
Ninth Circuit will overturn a bad decision.
    As a result of that ruling, boats that have what is called 
"wet exhaust," where water is taken from the sea, run through a 
pump and used to cool the exhaust of an inboard motor; boats 
that use a heat exchanger to cool the motor, which include the 
United States Coast Guard, the United States Navy, most vessels 
used by the Mississippi Bureau of Marine Resources, any boat 
that has an air conditioner that utilizes a heat exchanger 
would have to shut it off.
    A boat that has to sink would have to plug it. People who 
inadvertently catch a wave over the stern and find themselves 
in danger of sinking would be told, We are sorry, if you bail 
your boat, you are in violation of this law.
    Now, the law was intended to keep large commercial ships 
from bringing in ballast water that had things like lamprey 
eels and zebra mussels, from bringing those invasive species to 
our Nation. It is a well-intended law and a good law. The 
problem is, this interpretation has taken it to where every 
boat can't bail, every boat that catches a wave over the stern 
has to sink and release the diesel fuel to the water for a fear 
that a little bit of that seawater that just came out of the 
sea would go back to the sea.
    We have got to fix this. I remember a quote from a famous 
German general who, after a battle that he won, everyone was 
telling him what a great guy he was, and he said in effect, I 
don't know who won that battle, but I can tell you who would 
have got the blame for losing it.
    Congress didn't cause this. A bad court ruling caused this. 
But Congress has got to fix it, or I can assure you we will get 
the blame, come September when people are issued citations.
    So I very much appreciate your having this hearing. I very 
much appreciate the witnesses--in particular, Dr. Walker, 
coming up from Mississippi from the Bureau of Marine Resources.
    I look forward to solving this problem that was caused by 
one bad ruling by a judge who made a mistake.
    Ms. Johnson. Thank you, Mr. Taylor.
    Mr. LoBiondo.
    Mr. LoBiondo. Thank you, Madam Chair, very much. I join my 
colleagues in expressing our appreciation to you and Mr. 
Oberstar for holding this Committee hearing, but especially Mr. 
Taylor, who has been very passionate and very knowledgeable on 
this issue.
    Gene, I thank you very much.
    I supported the Clean Boat Act when the Committee marked it 
up a couple of weeks ago because Congress needs to act before 
every boat owner in this country is slapped with over $30,000 
in fines daily for what Mr. Taylor very artfully described as 
"incidental discharges" that really the boat owners have no 
control over--rainwater runoff and deck wash and things like 
that.
    But that bill had a huge flaw. It failed to treat all boats 
equally. While the bill did exempt recreational vessels, other 
small commercial boats like many of the fishing vessels and 
tour boat operators that I represent would not receive an 
exemption. It is simply unfair to provide exemptions for 
certain vessels while refusing to extend them for others that 
are of equal or, in many cases, smaller size.
    In addition, rainwater runoff, bilge water, engine cooling 
water and other discharges are materially the same, regardless 
of whether they are discharged from a recreational vessel, a 
fishing vessel, or a small tour boat.
    Since the Clean Water Act's inception in 1973, these 
discharges have been exempt from the EPA permitting. For 35 
years, these exemptions have been accepted by Congress and have 
stood unchallenged in the courts. More importantly, these 
exemptions have been applied to all vessels equally.
    The commercial fishing industry in my district is the 
second largest on the East Coast, but it is suffering from 
increased fuel costs, catch limitations, and the general 
economic slump. Now the EPA is going to make things even worse 
by forcing them to abide by costly permits or face tens of 
thousands of dollars in daily fines, which they cannot afford 
and which would put many of them out of business.
    Meanwhile, this Congress is going to let other boat owners 
off the hook? I don't think so. It is just not fair. At a time 
when our economy is experiencing a downturn, it is critically 
important that Congress move legislation to protect both the 
recreational and commercial boating industry and the millions 
of jobs they support from these unfair and costly practices.
    A number of us have gotten together. Mr. Young and I have 
introduced legislation, H.R. 5594, that treats all vessels 
equally. I hope to work together with you, Madam Chair, with 
our Committee leadership, and with all Members who are 
interested, to try to correct this problem.
    I thank you very much for the opportunity to speak this 
morning.
    Ms. Johnson. Thank you very much.
    Mr. McNerney.
    Mr. McNerney. I want to thank the Chairwoman for holding 
this important hearing.
    Of course, we all understand the importance of clean water 
and maintaining healthy waterways for recreation, commerce, and 
wildlife. My district includes the San Joaquin Delta, which is 
important for boat recreation and commerce. Because of that and 
other reasons, I am interested in what the witnesses are going 
to say this morning. So I am going to reserve any judgments 
until then.
    Thank you for coming out here and speaking to us.
    I yield back.
    Ms. Johnson. Thank you.
    Mr. Brown.
    Mr. Brown. Thank you, Madam Chair, for holding this 
Committee hearing this morning--and Ranking Member Boozman.
    Like many decisions by a Federal court in 2006 to require 
all 16 million vessels in the United States to obtain an EPA 
permit for incidental discharges, it came as an unpleasant 
surprise. The longstanding exemption for discharges that occur 
during the normal operation of a vessel has long worked for 
both the benefit of the environment and those who operate boats 
on our Nation's waters.
    Thankful for the tens of million recreational boaters in 
our Nation, this Committee reported legislation to continue 
those exemptions. However, if that bill were signed into law 
today, commercial boats such as those used by fishermen, tour 
operators, and freight providers would still need a permit from 
the EPA.
    Such requirements, the details of which are still unknown 
by folks like shrimpers in my district, risk put these long-
standing family businesses at further risk at a time when they 
can least afford it. Shrimpers face significant challenges--
most dauntingly, low-cost, low-quality imported shrimp that is 
dumped on domestic markets with the full support of governments 
like China.
    Shrimpers, like Americans of every stripe, are also feeling 
the impacts of record high fuel costs. Just yesterday, I 
received a plea from a shrimper in my district that we do 
something to address energy costs. That plea came in the form 
of a drill bit sent to my office. It says, Drill, drill, drill.
    With low shrimp prices, combined with high fuel, the 
average shrimper must catch 700 pounds per day just to cover 
the cost of fueling the boat. That is not a small catch. The 
costly permits and expensive equipment that will probably be 
required under whatever regulations EPA comes up with can serve 
to sink many of these hardworking shrimpers, ending their 
businesses and impacting a significant part of South Carolina's 
heritage and economy.
    This Subcommittee has the ability to craft an exemption and 
standard for commercial vessels that would allow the shrimpers 
in my district, in the gulf coast, the fishermen in Alaska and 
New Jersey, and other commercial vessel operators across the 
country to keep working the waters they hold so dear while 
keeping the waters clean. I am afraid of what will happen if we 
don't.
    Let me paint a picture of what I can see happening. Each 
will, at the last minute, set up standards for vessels. A large 
portion of the commercial operators, like shrimpers, decide the 
cost of the permits and the new equipment are too high so they 
drop out of the business completely. The remaining shrimpers 
finally get the attention of Congress, but instead of crafting 
an exemption like we should have done, we develop a program 
similar to those that already exist with EPA that provides 
grants to vessel operators to meet the requirements of the EPA 
regulations.
    A couple of years pass by before we are able to get funding 
for this program into an appropriations bill, but then it comes 
under attack as an earmark when the bill is on the House floor, 
since there are only a few shrimpers left to take advantage of 
the program.
    Instead of setting up this situation where they lose again, 
we can do the right thing and set up an environmentally 
responsible exemption and standards for incidental discharge 
for commercial boats.
    I look forward to working with my colleagues to make that 
happen.
    Thank you, Madam Chair. I look forward to hearing from the 
witnesses.
    Ms. Johnson. Thank you, Mr. Brown.
    Mrs. Drake.
    Mrs. Drake. Thank you, Madam Chairman.
    Madam Chair, I would also like to thank Chairman Oberstar 
for fulfilling his commitment to hold this hearing and to work 
with those of us who are interested in this issue. As has been 
stated, the permit exemptions for certain incidental discharges 
by small vessels have applied equitably to those vessels, 
regardless of vessel type or class.
    I join in applauding the Committee's work to continue this 
exemption for recreational boaters by moving H.R. 5949, the 
Clean Boating Act of 2008, forward. However, it is simply a 
matter of fairness to provide these exemptions equitably to the 
normal operation of commercial fishing vessels and other small 
vessels.
    Incidental discharges are just that, incidental. This 
includes weather runoff from the deck, engine cooling water, 
uncontaminated bilge water, all of which are necessary for the 
operation of a vessel. These discharges are the same, 
regardless of whether they originate from a recreational boat, 
a fishing vessel, or a small tour boat.
    My district is home to the mouth of the Chesapeake Bay and 
the entirety of Virginia's Atlantic coastline. Both commercial 
fishing vessels and recreational boating are extremely popular 
and important to our communities as well as to our country.
    I look forward to exploring this issue further to ensure we 
maintain the equitable treatment of these vessels.
    Thank you, Madam Chairman. I yield back.
    Ms. Johnson. Thank you very much, Ms. Drake.
    Before we begin the witnesses' testimony, I would like to 
ask unanimous consent to make the statements of the following 
organizations part of today's hearing record: The National 
Marine Manufacturers Association and Boat USA, Northwest 
Environmental Advocates, and the Passenger Vessel Association.
    Any objection?
    Mr. Taylor. Madam Chair I would also ask, I have been asked 
by Congressman Rick Larsen to have his opening statement 
included, without objection
    Ms. Johnson. Without objection, so ordered.
    Our witnesses today are Mr. James Hanlon, Mr. Andrew Fisk, 
Mr. William Walker, Mr. Christopher Reddy, and Ms. Kathy 
Metcalf, if you will testify in the order in which I called 
your names.

   TESTIMONY OF JAMES HANLON, DIRECTOR, OFFICE OF WASTEWATER 
MANAGEMENT, U.S. ENVIRONMENTAL PROTECTION AGENCY; ANDREW FISK, 
Ph.D., BUREAU DIRECTOR, LAND & WATER QUALITY, MAINE DEPARTMENT 
    OF ENVIRONMENTAL PROTECTION; WILLIAM W. WALKER, Ph.D., 
EXECUTIVE DIRECTOR, MISSISSIPPI DEPARTMENT OF MARINE RESOURCES; 
   CHRISTOPHER M. REDDY, Ph.D., ASSOCIATE SCIENTIST, MARINE 
     CHEMISTRY AND GEOCHEMISTRY, WOODS HOLE OCEANOGRAPHIC 
 INSTITUTION; KATHY METCALF, DIRECTOR, CHAMBER OF SHIPPING OF 
   AMERICA, ON BEHALF OF THE SHIPPING INDUSTRY BALLAST WATER 
                           COALITION

    Ms. Johnson. The Director of the Office of Wastewater 
Management, Mr. Hanlon, U.S. Department of EPA.
    Mr. Hanlon. Good morning, Madam Chairwoman Johnson, and 
Members of the Subcommittee. I am Jim Hanlon, Director of the 
Office of Wastewater Management at the U.S. Environmental 
Protection Action. My office is responsible for the 
implementation of the NPDES permitting program. Ben Grumbles, 
my boss, EPA's Assistant Administrator for Water, could not 
attend due to a conflicting hearing this morning.
    Less than 1 year after the Clean Water Act was enacted, EPA 
promulgated a regulation excluding discharges incidental to the 
normal operation of vessels from the NPDES permitting program. 
First promulgated in May 1973, that regulatory exclusion has 
undergone only minor changes over the last 35 years.
    In December 2003, plaintiffs filed a lawsuit in the U.S. 
District Court for the Northern District of California seeking 
revocation of the exclusion. In September 2006, the court 
issued an order vacating the regulatory exclusion as of 
September 30th of this year.
    Because that order was not limited to just ballast water 
discharges, it potentially implicates a wide variety of 
discharges incidental to the normal operation of vessels, not 
only for the thousands of larger oceangoing ships with ballast, 
but commercial vessels, barges, recreational vessels, and any 
other vessel other than vessels of the Armed Forces with 
discharges incidental to their normal operations into waters of 
the United States.
    The Clean Water Act generally prohibits the discharge of a 
pollutant without an NPDES permit. If the district court's 
order remains unchanged, the regulatory exclusion allowing for 
the discharge of pollutants incidental to the normal operation 
of a vessel without a permit will be vacated on September 30, 
2008.
    We respectfully disagree with the district court's 
decision; and the government, in November 2006, filed a notice 
of appeal with the U.S. Circuit Court of Appeals for the Ninth 
Circuit. Oral argument was heard by the court in August, 2007, 
and a decision on that appeal is pending.
    [Ed: the decision of the U.S. District Court for the 
Northern District of California was affirmed by the U.S. 
Circuit Court of Appeals for the Ninth Circuit on July 23, 
2008_the Court's opinion can be found under Submissions for the 
Record]
    I wish to make clear that the denial of the rulemaking 
petition and our appeal of the lower court decision does not 
reflect the dismissal of the significant impacts of aquatic 
invasive species. Rather, we believe the NPDES program does not 
currently provide an appropriate framework for managing ballast 
water and other discharges incidental to the normal operation 
of vessels. As a general matter, we believe that discharges 
from such highly mobile sources would be more effectively and 
efficiently managed through the development of national, 
environmentally sound, uniform discharge standards.
    The number of commercial vessels subject to NPDES 
permitting as a result of the court decision is very extensive. 
Our most recent analysis of the existing information indicates 
that approximately 91,000 domestically flagged and an 
additional 8,000 foreign-flagged commercial vessels would be 
affected, as well as up to 18 million recreational vessels.
    A wide variety of discharge types are involved, such as 
deck runoff from routine deck cleaning, bilge water from 
properly functioning oil/water separators, and ballast water. 
Based on the information available to us, we have identified a 
universe of 28 different waste streams incidental to normal 
operation of commercial vessels. It is listed in Table 1 of my 
written testimony.
    We plan to issue two draft general permits for public 
comment within the next few days, one focusing on commercial 
vessels and the other on recreational vessels. Because it was 
not prudent to simply await the outcome of the appeal, we are 
developing NPDES permits with a goal of establishing final 
permits prior to the September 30 date. Given the complexity of 
this task, the limited available information, the procedural 
steps we must follow, and the shear number of vessels and 
discharges that are implicated, this is an extremely ambitious 
goal.
    The recreational vessel permit focuses on those discharges 
with the most potential for impacts. For example, oily water 
discharges, transport and spread of aquatic nuisance species, 
with the emphasis on the use of commonsense, good boating 
practices; while in the commercial vessel permit, we 
necessarily deal with a broader array of discharges and have 
included more detailed control measures.
    Even though the initial round of NPDES permits would be 
issued by EPA, this cannot assure uniformity across the 
country. Federally issued NPDES permits are subject to 
certification by individual States under section 401 of the 
Clean Water Act with respect to compliance of State water 
quality standards and other appropriate requirements of State 
law.
    As stated in an April 1, 2008, joint EPA-Department of 
Homeland Security letter providing technical assistance on 
Title 5 of H.R. 2830, we strongly support enactment of 
legislation to strengthen the National Aquatic Nuisance 
Prevention and Control Act to better prevent, under Coast Guard 
leadership and in appropriate consultation with the EPA, the 
introduction of aquatic nuisance species via ballast water and 
other vessel-related pathways.
    We also strongly support enactment of legislation to 
provide for the appropriate development of national, 
enforceable, uniform standards for other discharges incidental 
to the normal operation of commercial vessels in lieu of the 
use of NPDES permits.
    I defer to the Department of Homeland Security for further 
details on the administration's preferred approach on invasive 
species.
    With respect to other discharges incidental to normal 
operation of vessels, with respect to H.R. 5949, which only 
includes those discharges incidental to recreational vessels, 
the administration proposal more comprehensively manages 
discharges incidental to the normal operation of all vessels. 
In particular, in lieu of using NPDES permits, it provides for 
the evaluation, development, and implementation of 
environmentally sound, nationally uniform and enforceable, best 
management practices based on best available technology. It 
would exclude recreational vessels less than 79 feet in length 
in this new program, as well as from NPDES permitting, while 
leaving the States free to regulate those vessels if they deem 
appropriate.
    We believe this approach is preferable to that currently 
contained in H.R. 5949 as it provides for development of 
national, uniform, enforceable controls focusing on discharges 
from commercial vessels, which are more likely to be of concern 
due to their discharge constituents and volume. My written 
testimony contains suggested language, legislative text for 
this purpose.
    In closing, Chairwoman Johnson, I would like to thank you 
for this hearing and would be happy to answer any questions you 
may have.
    Ms. Johnson. Thank you very much, Mr. Hanlon.
    I failed to ask earlier if you could contain your remarks 
to 5 minutes. You can put your entire statement in the record.
    Ms. Johnson. Mr. Fisk, from the Bureau of Land and Water 
Quality, the Maine Department of Environmental Protection.
    Mr. Fisk. Good morning, Madam Chair. Thank you very much 
for the opportunity to speak with you today and, as well, the 
States. Thank you very much for these deliberations on 
clarifying the Clean Water Act; the State of Maine is 
particularly interested in the clarification regarding 
passenger vessels.
    What I would like to do is briefly describe some work that 
the State of Maine has done with regard to permitting of 
vessels. But first, I think it is important to describe 
context.
    Since 1989, the State of Maine and coastal communities have 
spent $118 million fixing combined sewer overflows in our 
infrastructure. We have 100 percent of our communities in the 
State of Maine that have mandatory CSO, or combined sewer 
overflow plans. What this means is, we have reduced annual 
discharges of CSOs by over 70 percent.
    Additionally, we have spent millions of dollars to replace 
failing septic systems and other types of residential and small 
commercial wastewater treatment systems that discharge the 
surface waters. This is a comprehensive and strategic approach 
so that we cannot only meet the ambitions of the Clean Water 
Act, but our own ambitions for a vibrant economy around a 
healthy, natural environment.
    When we look at our ports, we also have invested 
significantly in them, whether that is putting in pump-out 
stations in marinas up and down the 3,000 miles of our coast 
for recreational vessels, or putting $20 million into improving 
the Port of Portland so we can have vessels ranging from the 
90-passenger American Eagle to the Queen Mary II come visit our 
ports.
    What this has meant is a very significant boon to our 
economy. We have over 2,000 shellfish harvesters, over 50 
shellfish aquaculture leases. What this means is, we are 
working for clean water for these jobs. Shellfish harvesting 
brings in 29 million in direct income and over $59 million in 
direct income to the State of Maine. As well, cruise ship 
landings have more than doubled in the last several years, and 
we have seen 400 jobs and $12 million as a result of the cruise 
industry coming to Maine.
    I want to describe this very briefly to put a framework 
around recently enacted regulations by the State of Maine. In 
2005, we promulgated a general permit for the combined 
discharge of gray and black water, or just gray water from 
large commercial passenger vessels, those greater than 250 
passengers. We have come up with an appropriate and reasonable 
framework that we have begun to implement.
    This began in 2005, a two-part strategy. The State 
legislature extensively deliberated on this issue and said, we 
would like no discharge areas applied in our ports and harbors 
along the coast and we would like to craft a reasonable set of 
requirements for these large commercial passenger vessels.
    We looked at the State of Alaska and the work they had done 
2 years prior. What we realized is, Alaska understood the 
characteristics of the effluent coming from these commercial 
passenger vessels and understood how they were maintained and 
operated. They had 2 year's worth of information. We evaluated 
that. We worked with the State of Alaska, and we decided it was 
very reasonable for these large cruise ships to meet standards 
that were equivalent to what we asked our municipal, publicly 
owned treatment works to meet. It was a question of parity.
    We knew these cruise ships not only discharged a large 
amount of gray and combined gray and black water, but the 
treatment systems were not necessarily monitored, and we could 
not verify how they performed. So we put this framework in 
place. Much of this work is referenced on our Web site, and I 
can direct you to a report that we provided to our State 
legislature to this end.
    What we found with regard to the commercial cruise ships is 
that the discharges were significant, municipal standards 
should apply, and we needed verification. So what did that 
mean? We created four pages of rules that had standards that 
were familiar to everyone in the industry for the last 30 
years, BOD, TSS, and residual chlorine. An 8-page general 
permit, 14-day turnaround time on the permit, and a $117 annual 
fee brings you into this program for these vessels. So we feel 
that large cruise ships can easily do their part to improve the 
water quality in Maine and add to this comprehensive strategy.
    Lastly, I will briefly note that jointly with our 
Department of Marine Resources we are working with the herring 
fishery, which lands herring for the lobster fishery as bait to 
develop some standards for how they offload herring at a number 
of shore-side facilities because we have had a number of 
documented and, unfortunately, significant water quality 
impacts. We believe collaboratively working with the industry, 
we can create reasonable standards about screening, how the 
discharge comes off the vessel at an outgoing tide and below 
the water, et cetera, so we can reasonably meet their 
expectations for business and protect water quality.
    I would be happy to answer any questions you may have.
    Ms. Johnson. Thank you very much, Mr. Fisk.
    Dr. William Walker, Executive Director of the Department of 
Marine Resources, Biloxi, Mississippi.
    Mr. Walker. Thank you, Chairwoman.
    I am Bill Walker, Executive Director of the Mississippi 
Department of Marine Resources. My department is a governing 
agency designed to enhance, protect, and conserve marine 
interests of the State. We manage all marine life, public trust 
wetlands, adjacent uplands and waterfront areas, and provide 
for the balanced commercial, recreation, educational, economic 
uses of these resources consistent with environmental concerns 
and societal needs.
    I am here today on behalf of the commercial and 
recreational vessel operators of the State of Mississippi. 
However, the current situation transcends the borders of my 
State, and if not solved, will have disastrous consequences to 
all commercial and recreational boaters throughout our great 
Nation. Thank you for inviting me to testify today regarding 
this very important issue.
    As I understand the situation, without congressional 
action, small commercial and recreational vessel operators 
will, effective September 30, 2008, be required to obtain a 
U.S. Environmental Protection Agency National Pollutant 
Discharge Elimination System permit under the Clean Water Act 
to be able to discharge materials incidental to the normal 
operation of their vessels. Regulated discharges would include 
deck washes, engine cooling water, gray water, and similar 
materials.
    My job as Executive Director of the Department of Marine 
Resources in Mississippi is to protect our coastal waters and 
the marine sources that inhabit them and to ensure that the 
health and safety of residents and visitors who utilize our 
waters are protected as well. I believe Federal and State 
regulations currently in place are more than adequate to 
protect our Nation's coastal waters as required under the Clean 
Water Act.
    Yogi Berra and other wise sages have suggested over the 
years, "If it ain't broke, don't fix it." Clearly, the 
provision under the Clean Water Act to exempt small boat 
operators from having to have NPDES permits to discharge these 
materials has worked quite well for some 35 years and does not 
need changing at this time.
    If action is not taken quickly to continue the exemption of 
these small vessels from this NPDES requirement, some 91,000 
commercial vessels and 18 million recreational boats currently 
operating in U.S. waters will be negatively affected.
    This Congress has been given very little time to address 
this situation, and I applaud the work that has been done so 
far. To my knowledge, at least four bills have been introduced 
to date. Senator Stevens has introduced S. 2645 that would 
provide an exemption for commercial fishing vessels less than 
79 feet and all recreational boats. Senators Nelson and Boxer 
have introduced S. 2766 that exempts all recreation boats from 
the NPDES requirement, and Congressman Steve LaTourette 
recently introduced the same bill in the House, H.R. 5949. 
Congressman Don Young has introduced House Resolution 5594 that 
would exempt commercial vessels less than 125 feet in length 
and all recreational boats.
    Of these four, Congressman Young's is the most 
comprehensive and the most fair. All small boats, whether 
commercial or recreational, need to be exempted.
    In Mississippi, and I would suggest, across the Nation 
commercial and recreational fisherman are under duress. The 
Mississippi shrimp industry has been a vital part of the 
economy of coastal Mississippi throughout its history. This 
industry--and while I am using shrimp as an example, this is 
true of all our fisheries--presently faces increasing fuel 
prices and continual dumping of foreign shrimp into U.S. 
Markets, largely without penalty.
    Many of these commercial fishermen, after generations of 
passing the trade down the line, are being forced out of this 
historical profession. According to NOAA fisheries data, the 
shrimp fishing effort in the Gulf of Mexico has declined by 78 
percent since 2003. In Mississippi, shrimp licenses today are 
roughly half what they were prior to Hurricane Katrina. Those 
who remain, do so by the slimmest of economic margins and are 
ill-positioned to accept additional financial burdens due to 
unnecessary permit fees.
    In terms of all licenses sold in the five Gulf States, 
total license sales dropped from 6.8 million in 2004 to 5 
million in 2006, a reduction of 1.8 million licenses sold. This 
action is lawsuit-driven, and the intent of this litigation was 
never directed at recreational and smaller commercial vessels.
    We have heard today that EPA does not support including 
these vessels under the NPDES requirement. I further believe 
that EPA has neither the desire nor the budget to develop a 
system to issue and enforce some 18 million permits to regulate 
the discharge of materials, most of which are not even 
considered prudent by the Agency.
    In short, it is just good common sense that recreational 
and smaller commercial vessels continue to be exempt from the 
NPDES permit requirement, as they have for the past 35 years, 
and I respectfully urge you to move forward quickly with 
legislation to make that a reality.
    Specifically, I ask that you support legislation that 
exempts all recreational vessels and commercial vessels less 
than 125 feet in length from the requirement to possess NPDES 
permits to discharge materials associated with the incidental 
operation of their vessels.
    Again, I would like to thank you, Madam Chairman and 
Ranking Member Boozman, for giving me the opportunity to 
present this testimony and for your leadership on the issue. If 
I can be of further service to the Committee as you work toward 
a reasonable solution of this issue, I stand ready to do so.
    Thank you.
    Ms. Johnson. Thank you very much, Mr. Walker.
    Dr. Christopher Reddy, Associate Scientist, Marine 
Chemistry and Geochemistry, Woods Hole Oceanographic Institute, 
Woods Hole, Massachusetts.
    Mr. Reddy. Good morning, Madam Chairwoman Johnson, Ranking 
Member Boozman, and Members of the Subcommittee. Thank you for 
the opportunity to speak to you today about the discharges 
incidental to the normal operation of a commercial vessel.
    I am a scientist at Woods Hole Oceanographic Institution in 
Massachusetts, and as an organic chemist, my field of research 
is marine pollution. I am currently studying five aftermaths of 
oil spills, as well as petroleum contamination in some of the 
most busiest harbors in the United States.
    For today's hearing, you had asked me to give an overview 
of oil inputs to the oceans from human activities with the 
emphasis on those released by commercial vehicles.
    Petroleum, or oil, is a complex mixture of molecules formed 
from organic debris acted on by geologic processes over 
millions of years. Practically, you can think about it as the 
cooking and squeezing of all plankton. These thousands of 
molecules that compose oil can have widely different 
properties. Microbes can eat some, others are very toxic, and 
then some can dissolve in water.
    This is an important point, that you cannot assume that all 
oil is the same. So runoff from one location and runoff from a 
deck may not be the same. Furthermore, we cannot assume that 
all oil inputs have the same impacts geologically. In fact, I 
usually say oil spills are a lot like buying a house, it's 
location, location, location.
    Nevertheless, worldwide, about 190 million gallons of crude 
oil or refined products enter the coastal waterways due to 
human activity. It is either released by extreme accidental 
events, like oil spills, which is about 19 percent of the total 
worldwide, or via chronic discharges. These include jettisoned 
fuel from airplanes, about 1 percent; activities associated 
with the extraction of petroleum, about 6 percent; air 
pollution, which is about 8 percent; and runoff from land 
sources, like automobile motor oil, which is about 21 percent; 
and finally, shipping operations was at 46 percent.
    Hence, it is the latter, the chronic input by shipping 
operations, which release more oil than accidents like the 
recent Cosco Busan oil spill that occurred in San Francisco Bay 
in November, 2007.
    However, these estimates come with a high level of 
uncertainty. Our best knowledge about oil inputs is from the 
National Research Council's Oil in the Sea III. This book and 
its predecessors have represented the state of our knowledge 
about oils inputs and fates, as well as effects on the ocean.
    In this book it was estimated that worldwide operational 
discharge by vessels greater than 100 gross tons was 23 to 210 
million gallons per year, with a best estimate of 70 million 
gallons. Therefore, it is possible there is at least a factor 
of 10 of what we estimate and what is released into the oceans 
by these vessels annually. This range is so broad because it is 
difficult to measure the amount of oil released in each vessel, 
to estimate the number of vessels at sea, and what percent are 
in compliance with proper handling of their waste.
    For example, the panelists who prepared those values 
assumed that 5 to 15 percent of the vessels were not compliant. 
When they were, they assumed it was 100 percent release of fuel 
sludge. Based on the select studies employing aerial 
surveillance, such noncompliance is commonplace, but hasn't 
been appreciably quantified.
    Since the publication of this book, I do not know of any 
concerted effort to improve such estimates. However, these 
values are lower than early estimates, likely resulting from 
better technology, education, and enforcement.
    Our interest in understanding how much oil is released 
plays a crucial role in understanding its effects on oceanic 
ecosystems. While oil has a short-term immediate ecological 
impact like those seen on television with birds coated with 
black viscous oil following spills, there are less visually 
arresting but more chronic and persistent effects.
    Numerous studies have shown that mixtures of lubrication--
machinery, crude, and fuel oils--leaked or discharged kill 
thousands of seabirds annually. Canadian researchers have 
estimated that 300,000 seabirds die annually from chronic oil 
pollution off the coast of Newfoundland. These highest 
incidents of bird deaths in the world are attributed to the 
close proximity of the feeding grounds of these birds in the 
dense shipping routes between North America and Europe. Most 
often, the oiling of these birds' feathers leads to death by 
the diminished capacity to waterproof, insulate and retain 
buoyance.
     With shipping increasing and rapidly industrializing 
countries adding to more international trade, oil discharges 
from normal operation of vessels still remains a threat. 
Additional studies on constraining such input terms and their 
effects are necessary before a clearer picture of this problem 
can be achieved.
    I thank you.
    Ms. Johnson. Thank you very much, Dr. Reddy.
    Ms. Kathy Metcalf, Director of the Maritime Affairs, 
Chamber of Shipping of America, Washington, DC.
    Ms. Metcalf. Good morning, Madam Chair, Members of the 
Committee. Again, we also thank you for holding this very 
important hearing on a very challenging and important subject.
    Today, I am testifying on behalf of the Shipping Industry 
Ballast Water Coalition, an informal group of five trade 
associations--my own, the American Waterways Operators, the 
Cruise Lines International Association, Intertanko, the Lake 
Carriers Association, and the World Shipping Council. I mention 
those because, collectively, these organizations represent 
members who own or operate over 90 percent of the vessels that 
trade in and out of U.S. ports, both from domestic trade and 
international trade. Our goal is to establish a single Federal 
standard to govern vessel discharges and to prevent a patchwork 
of overlapping and conflicting Federal and State programs.
    In listening to the comments by Members of your 
Subcommittee and some of my colleagues before me, I began to 
tick off item points that have already been made, and I found 
that I should be able to get in well under the 5-minute limit 
because most of these issues have been already discussed and 
brought up.
    The foundational question here is whether or not the Clean 
Water Act's NPDES program should be applied to these discharges 
that, by their very nature, come from mobile sources. We 
believe the answer to this question is a resounding "no" for 
four reasons. Before getting into those reasons though, I would 
like to ask that we note that our response is not intended to 
suggest that these discharges should not be regulated when, in 
fact, a number of them already are regulated. But rather, the 
response is intended to convey our belief that the NPDES 
program is not the appropriate vehicle to do so.
    The first reason is that there is a compelling need to 
create national uniformity in legal requirements relating to 
all marine vessels in order to adequately address the 
international and interstate nature of commerce. Shipping is 
international and, ideally, so also should be its regulation. 
However, in some cases, national action is necessary to protect 
national interests. We would only urge that national 
initiatives provide a consistent and clear structure for 
regulation.
    The Clean Water Act provides predictable standards for 
facilities that operate in one State's jurisdiction. It works 
well for these stationary sources because the State in which 
the facility is located and the discharge occurs within the 
same area. With vessels, the point source is literally a moving 
target, and that is why we need a single standard for vessels.
    Applying the NPDES program to vessels will weaken, not 
strengthen, the Clean Water Act and will have a potentially 
negative impact on trade. The U.S. Supreme Court recognized 
this--however, our colleagues in the lower court in California 
did not--that it is not workable in practice to submit a single 
point source to multiple permitting requirements, a point even 
more true when the source is a mobile vessel.
    The second reason, as I indicated earlier, many of these 
discharges are already addressed under international treaties, 
U.S. statutes, and regulation. Application of yet another 
overlaid program, the NPDES program, could create conflicting 
law at both the Federal and between Federal and State 
applications. These laws that currently apply were created with 
due regard to the realities and diversity of vessel operations 
of all sizes, and we suggest that that deliberation needs to be 
taken with regulation of these discharges as well.
    The third reason the NPDES system is not appropriate for 
application is, it was created, as I indicated, to manage point 
sources. There is no doubt as to its value, but both the 
technology-based effluent guidelines and the water quality-
based effluent limits presume that it is possible to identify a 
consistent set of discharges over a period of time as applied 
to specific sources. This obviously fails when applied to 
mobile sources.
    Finally, the NPDES system is unnecessarily complex and too 
resource-intensive. I will defer to my colleagues from the 
State and the Federal Government, but we would suggest a 
potential template would be the Uniform National Discharge 
Standard for Armed Forces vessels, a program, I might add, 
still yet to be completed after 17 years of discussion.
    In summary, we believe the way forward to address this 
issue in a scientific and environmentally protective manner is 
to follow a logical and comprehensive approach. While we think 
EPA properly exempted these discharges 30 years ago, the court 
decision found otherwise, and we believe that the commercial 
vessels should be expressly exempted by statute, and a 
consistent, comprehensive program of evaluation, assessment, 
and then as determined necessary, regulation should be applied 
consistent with Mr. Young and Mr. LoBiondo's proposal of H.R. 
5594.
    Thank you very much.
    Ms. Johnson. Thank you very much, Ms. Metcalf.
    We will begin our first round of questions. My first 
question goes to Mr. Hanlon.
    Mr. Hanlon, in completing the first phase of a study of 
discharge from military vehicles, EPA and DOD agreed that 25 
pollutants identified in the study had sufficient potential for 
adverse impact to the marine environment to require 
implementation of marine pollution control devices.
    So, in your opinion, of the 25 pollutants you have 
identified as common between military and commercial vessels, 
would some of these also have sufficient potential for adverse 
impact to the marine environment, and should the Congress 
address it?
    Mr. Hanlon. Madam Chairwoman, thank you for that question.
    Our current base of understanding in terms of discharges 
from vessels, as you noted, comes from our working with the 
Department of Navy under the Uniform Discharge Standard 
Provision for military vessels, and the information we have 
collected does indicate that there are waste streams where 
there is cause for concern in terms of the potential that they 
represent in terms of local water quality.
    Our concern, however, and the reason for the suggestion 
that we sort of move forward and provide additional study to 
commercial vessels is that although many of the operations on 
military vessels are similar to those on commercial vessels, 
basically doing a sort of straight-line extrapolation of those 
waste streams, the concentrations, and then the potential 
control technologies to commercial vessels, we don't think is 
appropriate.
    So although we would share the conclusion that there is 
cause for concern, based on the data collected from military 
vessels, that the next step in terms of then going to control 
mechanisms, we believe that sort of more information regarding 
the nature of those waste streams, and then available 
technologies to manage those waste streams from commercial 
vessels, would be the appropriate next step; and that is what 
we had in mind in terms of our construction and representation 
in terms of the administration's proposal.
    Ms. Johnson. Thank you very much.
    Mr. Boozman.
    Mr. Boozman. Thank you, Madam Chair.
    Mr. Hanlon, you said EPA believes the NPDES program does 
not currently provide an appropriate framework for managing the 
ballast water and other discharges incidental to the normal 
operation of vessels.
    What are some of the concerns, the disadvantages of 
regulating such discharges under the NPDES program?
    The other thing I would like to know is, this is a vast 
increase in jurisdiction, a vast increase. What are we talking 
about as far as cost? Who is going to pay the cost? Would you 
push that down to the States and then charge a permitting fee? 
Is it going to be an unfunded mandate? How would we go about 
doing that? How much more staff would you need in order to get 
that done?
    Mr. Hanlon. To be honest with you, we haven't done a 
workload model in terms of what it would take to implement the 
program that we are about to propose in the Federal Register on 
Tuesday in terms of the two general permits.
    Having said that, your first question is, what are the 
complications with the NPDES program as applied to vessels. I 
think members of the panel have sort of addressed it. Mobility, 
for one; basically, vessels, by their nature, are mobile. And 
that the Clean Water Act focuses on local water quality 
standards is the target for all the discharges and how permits 
are written under the Clean Water permitting program.
    So the challenge of using a permitting tool to meet water 
quality standards for the four States around Lake Michigan may 
be different, but that vessel would need to sort of meet, 
potentially, permits issued by all four States; and it would be 
a complication.
    Our initial proposal will be a national permit issued by 
EPA to cover all potentially covered vessels, that is the way 
the Clean Water Act is currently structured, individual States 
could seek authorization to basically run the permit program 
for vessels in their States. And then I think sort of the 
potential in terms of the degrees of variability that would be 
introduced again by different States up and down the coastlines 
or around inland water bodies, having the authority to issue 
permits to vessels that enter their water bodies to protect 
their water quality standard, would be an additional 
complexity.
    Again, as I said, we are concerned about discharges from 
vessels, both invasive species as well as incidental 
discharges. But the tool that the Clean Water permitting 
program represents, we don't believe is the best tool.
    Mr. Boozman. Thank you.
    Mr. Fisk, you testified to really a pretty narrow group of 
entities in the sense of 250-plus on the passenger ships and 
the effluent and things like that. I guess I would like to know 
a couple of things.
    Can you comment as to what you think about--you didn't say 
49 passengers or 249. Two hundred fifty is a pretty significant 
amount, plus. Can you comment a little bit about what you think 
as far as regulating your oceangoing smaller vessels--I want to 
compliment you on the tremendous work that you all have done in 
Maine in getting your point sources under control and stuff; 
the fishing is coming back and all that--but your fishing 
boats, your recreational vehicles, and then, again, the 50-
passenger cruise ship?
    Also, is it reasonable to subject vessels to varying 
standards from State to State, particularly as the vessels are 
sailing to different ports?
    Mr. Fisk. Thank you for your questions. If I miss one, 
please let me know.
    In our State legislature, we spent 2 years creating this 
program. Yes, it is a narrow class of vessels. It regulates 
gray and black water. So that is a narrow range of effluence. 
The problem is not as large as Mr. Hanlon describes. And we 
don't disagree that when you look at commercial vessels, the 
problem becomes more complicated.
    We came up with the 250-and-greater threshold based on some 
reasonable information. The legislature said there is cause to 
regulate these. The technology exists. Maine's position is with 
regard to recreational vessels, we do not think they belong 
here, and we very much welcome that clarification. So we have 
gone through an exercise of saying this is in and this is out.
    Again, just with regard to fishing vessels, we do think, as 
I have noted with some of the herring offloading, we should be 
able to have some reasonable regulations for them and we can 
see that through both the existing Code of Federal Regulations 
and our State law, coming up with something.
    And then I think you asked about national standards. Yes, 
we would support national standards. I think that definitely 
makes sense.
    Mr. Boozman. Mr. Thank you, Madam Chairman.
    Ms. Johnson. Thank you very much.
    Mr. Taylor.
    Mr. Taylor. Madam Chairman, I again want to thank you for 
holding this hearing, and the Chairman.
    I want to open this up to the panel. Is there anything - 
let's walk through this. A marine air conditioner in most 
instances is a heat exchanger. Seawater is pumped through, and 
the cool seawater is used to cool the air on that vessel.
    So, Mr. Hanlon, is there anything on a marine air 
conditioner on a commercial boat that is inherently a bigger 
pollutant than on a recreational boat? I think the answer would 
be, no. And you all jump in whenever you feel like it.
    A heat exchanger that cools the engine water that runs 
through an engine is seawater, goes through a heat exchanger, 
never touches the ethylene glycol but cools it and is usually 
sent out through the exhaust pipe of a boat, which also cools 
the exhaust so that you don't have to have a dry stack. It is 
used by the United States Coast Guard, and it is used by the 
Navy.
    It is also used by several vessels owned by the Mississippi 
Bureau of Marine Resources, Mr. Hanlon.
    What I find interesting is why would you exempt military 
vessels and the Coast Guard? And the Coast Guard is going to be 
out enforcing this rule on average Joes. The average Joe has 
got to have a permit; the Coast Guard doesn't. So I guess my 
question is, if it is clean enough for the United States Coast 
Guard, why isn't it clean enough for a commercial crabber, a 
commercial shrimper, a guy running a long line?
    Mr. Hanlon. I believe the answer is the Congress exempted 
or put military vessels under the Uniform National Discharge 
Standard Provision, and we have been working with the Navy 
since those statutory amendments have been made to sort of work 
and better understand those waste streams. So, basically, it 
was that statutory amendment that put military vessels under a 
different category.
    Mr. Taylor. Mr. Hanlon, historically has there been a 
problem with wet exhaust becoming pollutants? Has there been a 
problem with heat exchangers, off of air conditioners, running 
through engines, becoming pollutants?
    Mr. Hanlon. Not that we are aware of. One of the challenges 
that we have had since the district court decision is better 
understanding the 28 different waste streams that do come off 
of vessels. And basically, for most of those, except for the 
data coming off the UNDS military vessel study, we have very 
little information on the constituents in any of those waste 
stations.
    For example, and I know this is an analogy of grossly 
different proportions, but power plants that use cooling towers 
basically pick up metal from the metal in the cooling--in the 
heat exchangers. So if you sample the effluent from a cooling 
tower at a power plant, the chemical parameters of that are 
different from the water that went in. A heat exchanger on a 
vessel is a much smaller transaction, I agree, but if you say, 
is there any difference--in the world of analytical chemistry 
today, there is no such thing as zero. So I think that one of 
the challenges of the NPDES program is that we do not have the 
ability to sort of authorize de minimis discharges, and that 
would be one of the benefits of you doing a Uniform National 
Discharge Standard, as has been recommended as part of the 
administration's proposal.
    Mr. Taylor. Mr. Hanlon, my observation is that a typical 
recreational vessel actually has more horsepower than a typical 
commercial vessel of the same size. The reason being that the 
guy can afford--he is in a hurry. It is his weekend. He wants 
to get from here to there in a hurry. So a 50-foot boat, 
recreational, might have 800 horsepower. A 50-foot boat, 
commercial, probably has 200 to 300 horsepower because he has 
got to make a living. So, again, I am baffled, given the same 
size vessel, that you would think we ought to require a permit 
from one and not the other when one is actually creating more 
heat, using more energy. And, again, I know you didn't cause 
this ruling, and I do appreciate that you are willing to exempt 
some people.
    What I don't understand is how we are supposed to explain 
to the American citizens that the Coast Guard that is enforcing 
this, by your recommendation, is exempt, that vessels that are 
using less fuel are the ones that in fact have to get the 
permit, and the vessels using the most fuel don't. Again, it 
doesn't pass the smell test. It doesn't pass, as Dr. Walker 
said, the common sense test.
    Mr. Fisk, I understand your concerns. Gray water coming off 
a 1,000-foot cruise ship, that is a lot of gray water. Gray 
water coming off a 50-foot shrimp boat in no way compares. And 
what I really miss out of this all is, having been someone who 
voted for the Oil Pollution Act in 1990, which throws the book 
at any violator to the point where now people pay the extra 
money to prevent the spill from ever happening, why is it now 
that we have a very good law on the books to keep people from 
any even incidental discharges of an oil or chemical substance 
into the water, why is it all of a sudden we are worried about 
the water coming out of their exhaust, off their heat 
exchanger, of an engine-driven pump that they use to wash off 
their decks, rainwater coming off their decks, being able to 
bail their bilge if they inadvertently catch a wave over the 
stern or if rainwater makes its way into a boat that is not 
self-bailing. I fail to see why it makes any sense at all for 
our Nation to come up with a whole new permitting scheme to 
address things that have not been a problem for the past 35 
years. And I would invite anyone on the panel to comment on 
that.
    Mr. Fisk. Just to clarify the State of Maine's position on 
this, I think that we agree with what you are saying. There are 
a lot of examples that provide a lot of nuance to how you might 
craft the language to fix the ruling. So recreational vessels, 
that is easy. If there are additional stipulations or 
clarifications on commercial vessels, we are very welcome to 
deliberate on that, and we understand your points and don't 
disagree with some of them. I am not an expert on some of these 
other incidental discharges, and we have not dove into the 
extent that EPA has, but we understand your points and agree 
that this is requiring deliberation on the commercial side as 
well.
    Ms. Johnson. Thank you, Mr. Taylor.
    Mr. LoBiondo.
    Mr. LoBiondo. Thank you, Madam Chairman.
    Just a quick point to clarify, I hope, for something that 
Dr. Reddy said, and I thank you for your testimony on the 
effects of oil spills, Doctor, and I agree with you that your 
findings--both oil discharges are with your findings. But oil 
discharges are governed under the Oil Pollution Act of 1990. 
They are not nor have they ever been incidental discharges, and 
I just want to make sure, Madam Chairman, that that was 
clarified.
    And for Mr. Hanlon, would you agree that these discharges 
incidental to vessel operations from a commercial vessel and a 
recreational vessel are, for all intents and purposes, 
materially the same? I think this is what Mr. Taylor was 
getting at, but would you agree with that or not agree with 
that?
    Mr. Hanlon. I think if you compare discharges from 
commercial vessels for the whole class of commercial vessels, I 
think there are complexities of the operations that occur 
certainly on the largest of those commercial vessels that are 
very different than what you see off a typical recreational 
vessel.
    At the smaller range, as Mr. Taylor was saying, I think 
sort of they are and could be very similar. But when you take 
all 98,000 commercial vessels that we believe would be covered 
by this decision, there are sort of members of that commercial 
vessel class where the waste streams are much more complex than 
you would see off of a typical recreational vessel.
    Mr. LoBiondo. So, for many instances with commercial 
operators that I represent who have a 35-foot commercial 
vessel, basically what we are telling them is that their 
rainwater discharge is different than that of the rainwater 
discharge of the 35-foot sailboat.
    And this is the kind of stuff that drives people up a tree 
at home. They don't get it. They don't understand it, and there 
is no way that we can look them in the eye and try to tell them 
that the rainwater is different off of their vessel than it is 
off a sailboat. Help me out here.
    Mr. Hanlon. The benefit of the administration's approach in 
suggesting that commercial vessels, in the management of 
incidental discharges from commercial vessels, be moved over to 
a uniform national standard, a section 312-like standard, would 
basically allow the agency to work through a process to 
identify for the smaller categories of commercial vessels what 
those waste streams are and would have the authority to declare 
those de minimis discharges and not subject to any national 
standard.
    However, as you move up the size scale to the more complex 
commercial vessels and the more complex waste streams, that it 
would give the agency, based on data we would collect specific 
to categories and classes of commercial vessels, what in fact 
is the nature of those waste streams and what uniform national 
standards would be appropriate.
    Mr. LoBiondo. But a 35-foot commercial boat as we stand 
today has got a problem; right?
    Mr. Hanlon. I would agree with your statement that the 
rainwater off a 35-foot commercial boat----
    Mr. LoBiondo. So what we are faced with is, if I would try 
to tell one of my commercial guys what you just said and we 
were out at sea, they would throw me overboard. I mean, part of 
the problem that we face here is, while this theory is 
wonderful inside the beltway, that when we get out in the real 
world, it has got to work. And what we are doing right now 
based on this court order is not going to work in the real 
world where people don't give a hoot about the theory. They are 
worried about the cost of fuel to get out there. They are 
worrying about all the other regulations they have got. And 
then I am going to try to tell them that their rainwater is 
different than that of off a sailboat.
    I mean, this is very difficult. I hope you can sense our 
frustration.
    Madam Chairman, if we get another round, I have got some 
more questions. Thank you.
    Ms. Johnson. Thank you very much.
    The Chairman of the Full Committee Mr. Oberstar.
    Mr. Oberstar. Thank you much, Madam Chairman. And I 
appreciate your investment of time and energy in conducting the 
hearing which I committed to undertake during markup of our 
recreational boating legislation a couple weeks ago.
    It is important to understand the dimensions of the issue 
we are dealing with here. And while the discussion is largely 
about incidental and there is somewhat of a spirit of 
dismissing incidental discharges, I would just like to recall 
that in this very Committee hearing room at this table, Thor 
Heyerdahl in the late '60s testified about his journey from 
Polynesia across the Pacific to the coast of South America on 
the Ra II raft, which he described the flotsam and jetsam in 
the Pacific Ocean, including hundreds and of thousands of tar 
balls which they collected, at least a sampling, from 
incidental marine discharges. There were no oil spills on the 
Pacific, but incidental discharges, grease and petroleum 
products that collected other items and floated along just 
slightly alongside of, and he said, "our raft just barely kept 
ahead of those tar balls." Those do damage to the ocean 
environment.
    When we were fighting the lamprey eel infestation in the 
Great Lakes that began in 1954 and continues to this very day, 
there wasn't enough of an awareness of the discharge from 
ballast water that followed upon opening of the St. Lawrence 
seaway and bringing vessels from the seven seas into the Great 
Lakes and along with them zebra muscles, quagga muscles, and 
spiny echinoderms and the round-eyed European goby and purple 
loosestrife and a whole host of other invasive species that 
have flooded the Great Lakes, that have been carried to the 
inland waters of Wisconsin, Minnesota, Illinois, Indiana, Ohio, 
and moving their way further west.
    And I remember, when I was raising this issue, colleagues 
on the Committee from the West Coast say, "not a problem, we 
don't have a problem with discharges from ballast water," until 
nonnative species from the East China Sea began showing up in 
the harbors of the West Coast from Southern California to the 
State of Washington.
    So we need to understand better the dimension of the issue 
you are dealing with in the proposed rulemaking and the nature 
of and extent of an exemption for commercial vessels, and that 
starts with the definition of the term "incidental." Incidental 
is on one end; what is on the other end? What is the opposite 
of incidental, and how do you measure the two?
    Pull your microphone up closer to you so we can hear you 
better. Thank you.
    Mr. Hanlon. The administration's proposal in terms of 
moving the discharges from commercial vessels to a 312-like 
program would basically have that decision-making process made 
based on a study of different categories of commercial vessels. 
So sitting here today, EPA does not have the information that 
we believe we would need to make those kinds of decisions in 
terms of the 91,000 U.S. flag commercial vessels, the 8,000 
foreign flag vessels that come into U.S. ports every year, to 
understand the waste streams that come off of those, the 28 
different categories of waste and which are of concern and how 
to manage those all sort of the incidental waste stream 
category. Ballast water is a different category that we are 
sort of working with the Coast Guard on and are not, as I 
understand it, the subject of the today's hearing.
    Mr. Oberstar. But you haven't quite addressed the issue I 
raised. If, on one hand, you are proposing to deal with--and 
one of the issues raised by those who are concerned about the 
regulation is incidental discharges. How much is incidental? 
And how does that compare with what is on the other end of the 
spectrum of discharges? Is there a major or maximum or a 
significant? I want to understand the dimension of what you are 
trying to address in this rulemaking.
    Mr. Hanlon. As EPA made the decision--the regulatory 
exclusion that is--and the vacatur of that, that is the subject 
of the court decision and certainly today's hearing. Since 
1973, EPA has regulated a number of vessel-based discharges 
that we have determined sort of since the early days of the 
Clean Water Act are, in fact, not incidental and that includes 
onboard seafood processing, mining, oil drilling, spills, 
illegal dumping, trash, garbage, et cetera. Those are not 
incidental; those are sort of not covered.
    Mr. Oberstar. That is what I am trying to get at. So the 
rule that you cite in your testimony and I recall very well as 
I was chief of Committee staff in 1972, and we wrote the Clean 
Water Act and followed closely all the regulatory 
promulgations, but the exclusion from 1973 until the recent 
court case was discharge of sewage from vessels, effluent from 
properly functioning marine engines, laundry, showers, galley 
sink wastes, and other discharges incidental to the normal 
operation, and then you have the regulation specifies what is 
not incidental: rubbish, trash, garbage, material discharged 
overboard on the Great Lakes. You can throw dunnage and other 
items into that. So how are you attempting to cope with the 
district court decision which is now under review by the 
circuit court? How are you proposing to deal with that?
    Mr. Hanlon. On Tuesday, in the Federal Register, we will 
propose two general permits, one for recreational vessels and 
one for commercial vessels. And basically, those would be 
general permits that will be out for public comment for 45 
days. We have three public meetings and a public hearing 
scheduled to receive input, answer questions on the terms of 
those general permits. But sort of given the structure of the 
402 permitting program and the district court decision that EPA 
has appealed--and our appeal is pending in the Ninth Circuit--
that we felt it was prudent to move forward with permit 
instruments that would allow coverage for all vessels pending 
either legislative relief or judicial relief with respect to 
the district court decision.
    Mr. Oberstar. And that is a prudent and appropriate 
approach. You just a moment ago alluded to different classes of 
commercial vessels. Among those classes of commercial vessels, 
is there one which you would envision a general permit and 
maintaining the exclusions of the 1973 rule?
    Mr. Hanlon. Our current thinking is that, given the 
structure of the Clean Water permitting program, we would. The 
general permit covers all commercial vessels but has a tiering 
system in terms of what their obligations are. For example, 
there are classes of commercial vessels that would not need to 
apply to a general permit-- through a notice of intent. There 
would be no required paperwork. They would have a set of best 
management practices required, and that would be their 
obligations under the permit.
    Mr. Oberstar. Would that include the type of vessel that 
Mr. Taylor a moment ago alluded to or Mr. LoBiondo referred to 
a moment ago?
    Mr. Hanlon. In all likelihood, yes.
    Mr. Oberstar. They would be covered. And how would the 
general permit process work in practice? How would Mr. Taylor's 
constituent, who operates--what are they? G-mast, 50-some-foot 
vessels?
    Mr. Taylor. Fifty, sixty, seventy.
    Mr. Oberstar. Sixty to seventy? I think you have a 79-foot 
category.
    How do you envision that working?
    Mr. Hanlon. First of all, the 79-foot category is for 
recreational vessels. That is the way that we define 
recreational vessels for purpose--for the first general permit. 
The second general permit are all commercial vessels, and for 
those that are based on sort of the complexity of the operation 
are really sort of a size, gross tonnage limit as well as those 
that take on a certain proposed amount of ballast water, I 
think, is 8 cubic meters. So if a fishing vessel has no ballast 
water and is over 300 metric tons, basically, their obligation 
under the general permit would be to abide by some best 
management practices outlined in the permit. There would be no 
cost to apply--there is no application, so there is no cost. 
And their obligation would be to implement those best 
management practices.
    Mr. Oberstar. How do they apply for this----
    Mr. Hanlon. They would not need to apply. There would be no 
application required for that smaller set--smaller size of 
commercial vessel.
    Mr. Oberstar. And what percent of commercial vessels would 
be covered by that general permit?
    Mr. Hanlon. Our best estimate right now is about half.
    Mr. Oberstar. About half. And the other half are a much 
larger size?
    Mr. Hanlon. Much larger. And they would be required to 
submit a notice of intent to be covered under the general 
permit. And for some specific classes, like cruise ships, they 
would have an additional set of requirements.
    Mr. Oberstar. And when do you envision the rulemaking to 
run its course of the public review and commentary period?
    Mr. Hanlon. We plan to have it proposed in the Federal 
Register on Tuesday next week. It will be available on our Web 
site on Monday for people to take a look at.
    Mr. Oberstar. A how many day comment period?
    Mr. Hanlon. A 45-day public comment period, which brings us 
to about the end of July. There will be a challenge, depending 
on the number of comments received, and finalize those two 
general permits by the end of September, but that is our 
objective.
    Mr. Oberstar. Would that process accommodate the beginning 
of fishing season for those commercial fishing vessels?
    I know Mr. Young at our hearing insisted that September/
October is the time when the "Deadliest Catch" starts running 
on TV.
    Mr. Hanlon. Our target is driven by the court schedule and 
the vacatur taking effect on September 30. I think fishing 
seasons are different sort of depending on where you are at 
around our coastlines or inland waters, but September 30 is our 
clear objective to have that permit in place.
    Mr. Oberstar. Thank you very much.
    I have loads of other questions, but there are other 
Members who have their own issues to pursue here, and I want 
them to have that opportunity.
    Thank you.
    Mr. Boozman. Madam Chairman, can I ask unanimous consent 
that Mr. Young be allowed to join us on the dais?
    Ms. Johnson. Yes, without objection.
    Mr. Oberstar. Without objection, absolutely.
    I didn't notice that the gentleman had come in, our former 
Chairman.
    Thank you for participating.
    Mr. Young. Thank you, Mr. Chairman.
    I am very interested in what is going on here, as you know.
    Madam Chairman, thank you. And I want to thank you, Mr. 
Chairman, and, Madam Chairman, for committing to this hearing.
    This is a crucially important issue. And what I am 
concerned with, Madam Chairman, and, Chairman of the Full 
Committee, is how this affects the fishing industry and what 
can we do to make sure, if the EPA goes along with the court 
rulings, that we can make sure that our fishermen still can 
fish without any undue burden? I don't know exactly, when we go 
to sizes of ships, whether that will solve our problem because 
we have such a thing as a brine tank, Mr. Hanlon, which is 
where we put our fish in. It is on our crab boats. It is on the 
rest of them. Now, is that considered discharge when they drain 
the brine tank, and will they have to have permits in doing so, 
and who will supervise it?
    Mr. Hanlon. I am not personally familiar with sort of the 
intricacies of managing a fishing boat other than watching the 
TV show, as the Chairman mentioned, with my son on a regular 
basis.
    Basically, all discharges, by Clean Water Act definition, 
are covered. However, the general permits that we are prepared 
to propose on Tuesday in their first iteration--the permits 
will be in place for up to 5 years--will basically require 
commercial vessel operators to implement good boating practice, 
best management practices, so that if they are sort of in 
compliance in keeping with sort of what is deemed to be good 
practice in the industry today, we don't anticipate that their 
obligations on October 1 will be significantly different than 
what they need to do on September 30, the day that the vacatur 
expires.
    Mr. Young. Mr. Chairman, that is our biggest problem.
    Now, I take your word for it. I think your intent is 
following the court ruling. I do also think there is a tendency 
within the agency itself to be somewhat meddlesome sometimes, 
and I think our job as legislators is to make sure this does 
not occur in a commercial endeavor that is really not a 
polluter but can't meet the requirements of the regulations.
    Now, that is easy. They can do it. Well, that is somebody 
sitting in the beltway and not outside the beltway dealing on 
the ground with the industry itself. I go back to these brine 
tanks. This is where we put the fish or the crab, and we haul 
them so they are still alive, especially the crab and not the 
fish, but when we drain that, is that considered--would we have 
to get a permit, and what imposition would that put on the 
fishermen?
    I believe the gentleman from Mississippi has also mentioned 
the fact, and the gentleman from New Jersey, that we are having 
enough problems now with the high cost of fuel, et cetera, at 
meeting even the break-even point. And I don't want the 
government to do what is not logical.
    And the reason I say that, Mr. Chairman, the agency, EPA 
agency, went into my city of Kenai and arbitrarily, without any 
science or any backup, required a less amount of arsenic in 
drinking water than the municipal produces which is natural. It 
is going to cost $25 million to put in a plant to make the 
water purer than nature makes it, and I just think that is a 
ridiculous situation, and there was no science behind it. 
Somebody here was sitting in Washington, D.C., "Well, this is 
not acceptable."
    Now, if it was manmade, I could see it, but this is natural 
and have been drinking it for 500 years. I can drill a well and 
drink the water, and there is no problem. But because of the 
municipality is delivering it, they have to meet the standard. 
And it has no sense.
    And I just hope we don't go through this line, Mr. 
Chairman, through this so-called regulation of discharged deck 
water, brine water, storage bins, et cetera, and not be able to 
recuse or make sure that when we get involved in this that, if 
you are going to insist upon following the letter supposedly of 
your regulations and my fishermen are put out of business, then 
we have to act. We have to take the responsibility to say, you 
are not using logic, applying it to our fisheries.
    Mr. Duncan. Will the gentleman yield?
    Mr. Young. Yes, I will gladly yield.
    Mr. Duncan. I know we are running out of time here, so I 
will just try and say very quickly, if I can, I was impressed 
with Ms. Metcalf's testimony talking about the practical 
impossibility of applying these detailed regulations to the 16 
million recreational vehicles, 110,000 commercial fishing 
vessels, 53,000 freight and tank vessels, and the cost of all 
this.
    But what concerns me is, in 1978, in east Tennessee, we had 
157 small coal companies. Then we opened up an Office of 
Surface Mining there, and slowly but surely, all the small 
companies went out. Then all the medium-sized companies went 
out. And now you have just a few big giants. And that happens 
in every industry when you overregulate. And I was concerned, I 
was impressed with what Mr. LoBiondo said about how these 
regulations sometimes sound good inside the beltway, but he 
said his 35-foot fishing vessel operators might throw him 
overboard.
    And what happens when we have these comment periods and 
these public hearings, most of these small fishing operators 
are not lawyers. They generally don't submit or don't even know 
how to submit comments. Then these public hearings are 
dominated by academic types and environmental do-gooders that 
are very wealthy people but who probably never set foot on a 
small commercial fishing vessel, as Mr. Hanlon said he hadn't. 
And you've got enough employees over there. Send them out and 
have them ride on a small commercial fishing vessel a few 
places around the country and see how these rules would work in 
the real world.
    What I am afraid of is, if we come in, and we do what the 
court has said and what some of these academic types and 
environmental radicals would have us do, you are going to see 
thousands of small commercial fishing operators go out of 
business. And I don't think that would be a good thing because 
what it would do, it would drive up the cost of fish, just like 
the cost of coal has exploded when we have run all the coal 
operators out.
    And I don't know whether Ms. Metcalf has an estimate, but 
she talks about these State water quality people saying they 
have a budget shortfall of $700 million to $900 million in 
2001, and it would be much higher now. I tell you, I believe it 
would cost a fortune if you have an overly broad application of 
the rules that would have to be applied under this NPDES 
regiment. It would be unbelievable. And those costs would have 
to be passed on to the consumers in all of these areas, 
affecting everything that we buy. So we are about to get 
ridiculous here, and we need a little common sense applied to 
some of these things.
    Thank you for yielding.
    Mr. Young. Madam Chairman, I know my time has run out.
    But, again, the court made this ruling. So it is up to us 
as a legislative body to tell the court they are wrong.
    I can attack you all I want. And, very frankly, that is 
your job, and you are doing what you have to do. So I want to 
make that clear. But I want to make also the point--and I do 
support the recreational business, but we have got 18 million 
recreational boats we are exempting and 80,000 commercial 
fishing boats. And if we didn't want to get into it, if we 
wanted to compare discharge and discharge, the 18 million boats 
are far exceeding the 80,000. So if we go forth with this, as I 
think we should--and don't let the court legislate for us. That 
is what we are fighting here, ladies and gentlemen, the court. 
And I think we have a responsibility to those which we 
represent and those that are in industrial and those that have 
a commercial license, to make sure that they are defended 
because they have done no harm. So let us take the court, 
especially out of California, I believe, and let us do our job, 
and then EPA doesn't have to worry about it anymore. You don't 
have to pass all those regulations. You don't have to do all 
this other nonsense. And, very frankly, it is nonsense. That is 
what gives government a bad name.
    We ought to start using logic. So let us go do our job, and 
we will try to get this amendment adopted so that it includes 
the 80,000 commercial vessels.
    I yield back, and thank you, Madam Chairman.
    And, Mr. Chairman of the Full Committee, too, thank you.
    Mr. Taylor. Madam Chairman.
    Ms. Johnson. Just one moment.
    I want to ask, Mr. Fisk, if you will submit to the 
following at a later time. We are trying to close it out before 
we go for voting.
    In your opinion, is there a Federal role in regulating 
discharges incidental to the normal operation of a commercial 
vessel? And, also, how are States to protect coastal waters 
from commercial vessels?
    And if you would submit your recommendations to the 
Committee, I would appreciate it.
    And, Dr. Reddy, in carrying out your research on marine 
pollution, you have identified that the majority of the crude 
oil and refined products that enter coastal waterways and 
oceans from human activity comes from commercial shipping 
operations. However, some have said that the existing 
international and Federal laws to prevent the release of oil 
into the coastal waterways is more than adequate to protect the 
marine environment. In your opinion, is the current regulatory 
regime working to control the release of oil and other refined 
products into the marine environment?
    If you will submit your response in writing, I would 
appreciate it.
    Mr. Taylor.
    Mr. Taylor. Thank you, Madam Chairman.
    Keeping in mind that we have votes on the floor and a 
fairly busy schedule on the floor today and the Chairwoman's 
desire to wrap this up, I would ask unanimous consent that our 
witnesses be given an additional 5 days to submit any 
additional remarks that they would like to make to the 
Committee.
    Since we have had our chance to say our piece, I would like 
to give them one additional opportunity if they feel like there 
are some follow-up comments that need to be made.
    Ms. Johnson. Without objection.
    Mr. Taylor. Thank you, Madam Chairman.
    Ms. Johnson. Thank you.
    The Committee is adjourned. We are not going to be 
returning today.
    Thank you very much to all the witnesses.
    [Whereupon, at 11:38 a.m., the Subcommittee was adjourned.]

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