[Senate Report 114-160]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 284
114th Congress  }                                         {  Report
 1st Session    }                                         {  114-160




                October 29, 2015.--Ordered to be printed


    Mr. Inhofe, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [to accompany S. 1500]

                             together with

                             MINORITY VIEWS

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 1500) to clarify Congressional intent 
regarding the regulation of the use of pesticides in or near 
navigable waters, and for other purposes, having considered the 
same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                    General Statement and Background


    The Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA) governs the registration, sale, and use of pesticide 
products within the United States. 7 U.S.C. 136 et seq.
    Section 2(u) of FIFRA defines pesticides broadly as any 
substance used to kill, repel or control pests, to regulate 
plants, or to stabilize nitrogen. EPA is directed to restrict 
the use of pesticides as necessary to prevent unreasonable 
adverse effects on people and the environment and regulate the 
sale and use of pesticides in the United States through 
registration and labeling.
    Originally enacted in 1947, Congress substantially amended 
FIFRA in 1972. The legislative history of the 1972 amendments 
makes it clear that Congress intended FIFRA to be the tool for 
EPA to protect the human health and environment, including 
interstate and navigable waters, from adverse effects of 
pesticide use:

        The Congress hereby finds that pesticides are valuable 
        to our Nation's agricultural production and to the 
        protection of man and the environment from insects, 
        rodents, weeds, and other forms of life which may be 
        pests; but it is essential to the public health and 
        welfare that they be regulated closely to prevent 
        adverse effects on human life and the environment, 
        including pollution of interstate and navigable waters; 
        . . . and that regulation by the Administrator and 
        cooperation by the States and other jurisdictions as 
        contemplated by the Act are appropriate to prevent and 
        eliminate the burdens upon interstate and foreign 
        commerce, to effectively regulate such commerce, and to 
        protect the public health and welfare and the 
        environment. (Emphasis added). H.R. Rep. No. 92-511, 
        92d Cong., 2d Sess., 13-14 (1971).

    At a February 16, 2011, joint hearing held by Subcommittee 
on Nutrition and Horticulture of the House Agriculture 
Committee and the Subcommittee on Water Resources and 
Environment of the House Transportation and Infrastructure 
Committee, Dr. Steven Bradbury, Director of the EPA Office of 
Pesticide Programs, testified that FIFRA fully protects water 

        The regulatory restrictions imposed by EPA under FIFRA 
        directly control the amount of pesticide available for 
        transport to surface waters, either by reducing the 
        absolute amount of pesticide applied, or by changing 
        application conditions to make transport of applied 
        pesticide less likely. In sum, EPA uses its full 
        regulatory authority under FIFRA to ensure that 
        pesticides do not cause unreasonable adverse effects on 
        human health or the environment, including our nation's 
        water resources.

Clean Water Act

    Section 301 of the Federal Water Pollution Control Act 
(Clean Water Act or CWA) prohibits the discharge of a pollutant 
into navigable waters from a point source without a permit. 33 
U.S.C. 1311(a). Consistent with the legislative history of 
FIFRA, for over 30 years, the EPA did not interpret this 
section to require a discharge permit for pesticide use when 
the pesticide is used in a manner consistent with its FIFRA 
label. However, in 2001, the U.S. Court of Appeals for the 
Ninth Circuit held in Headwaters, Inc. v. Talent Irrigation 
District that the application of herbicides to control aquatic 
weeds that were choking an irrigation canal violated the CWA 
under the circumstances before the court (which involved a 
spill, not FIFRA-compliant use). 243 F.3rd 526 (9th Cir. 2001). 
In 2002, the Ninth Circuit held that aerial pesticide spraying 
by the Forest Service to control a predicted outbreak of the 
Douglas Fir Tussock Moth was regulated by the CWA. The court 
reached this conclusion even though the spraying complied with 
FIFRA because the court did not address the question of whether 
the pesticides were pollutants and instead erroneously assumed 
that the parties agreed they were pollutants. League of 
Wilderness Defenders v. Forsgren, 309 F.3d 1181 (9th Cir. 
    In response to the regulatory uncertainty created by these 
decisions, in 2006 EPA promulgated a rule to codify its long-
held position that FIFRA-compliant pesticide use is not the 
discharge of a pollutant. 71 Fed. Reg. 68,483 (Nov. 27, 2006). 
Like EPA's long-standing policy, this rule relied on compliance 
with FIFRA to protect the human health and the environment and 
determined that properly used pesticides are products, not 
wastes. Various environmental groups sued to overturn this 
    In January 2009, in National Cotton Council v. EPA, 553 
F.3d 927 (6th Cir. 2009), the Sixth Circuit vacated EPA's 2006 
rule holding that the CWA definition of ``discharge of a 
pollutant'' could include the use of pesticides if any residue 
remains after use, even though the pesticide is a product and 
not a waste at the time of discharge. This novel decision is 
not consistent with decisions in the D.C. Circuit that hold 
that the CWA does not regulate sources of pollutants. See NRDC 
v. EPA, 859 F.2d 156, 169 et seq. (D.C. Cir. 1988); American 
Iron and Steel Inst. v. EPA, 155 F.3d 979, 996 (D.C. Cir. 
    Unfortunately, EPA chose not to appeal or seek a rehearing 
of this decision, despite requests to do so by Tom Vilsack, 
Secretary of Agriculture, and by the Chairman and Ranking 
Member of the Senate Agriculture Committee, Tom Harkin and 
Saxby Chambliss. Secretary Vilsack's March 6, 2009 letter to 
EPA Administrator Lisa Jackson noted:

        The court's adverse decision will have profound 
        implications for American farmers. The panel's ruling 
        effectively broadens the potential application of the 
        CWA to reach agricultural activities that the EPA has 
        never regulated under the provisions of the CWA. By 
        broadening the Act's reach, the court burdens American 
        agriculture with a newly minted NPDES permit 
        requirement for the application of all FIFRA-compliant 
        biological pesticides whenever those pesticides might 
        find their way into waters of the United States, and 
        for all FIFRA-compliant chemical pesticides whenever 
        the residues of those pesticides find their way into 
        the waters of the United States.

    Senator Harkin's and Senator Chambliss' April 3, 2009 
letter echoed this concern.
    Industry groups sought a rehearing and Supreme Court review 
of the National Cotton Council decision, but without EPA's 
support, those requests were denied. As a result, farmers, 
foresters, mosquito control districts, and other landowners 
were required to obtain CWA permits to continue to use 
pesticides to protect our food supply from pests and to control 
vectors for diseases like West Nile Virus. EPA estimates that 
there are 365,000 pesticide applicators that now need permits. 
76 Fed. Reg. 58,806-07 (Sept. 22, 2011).
    To address this issue, on October 31, 2011 EPA issued a 
pesticide general permit, which is applicable in states where 
EPA is the permitting authority (Idaho, New Mexico, New 
Hampshire, Massachusetts, and D.C.), as well as in U.S. 
territories, some parts of Indian Country and some federal 
facilities. Using EPA's permit as a model, states also have 
issued pesticide general permits. These permits do not change 
how pesticides are applied. EPA and states continue to rely on 
FIFRA requirements to protect human health and the environment. 
Instead, these permits add paperwork burdens. Further, record-
keeping and reporting burdens create legal vulnerabilities 
associated with paperwork violations.
    The duplicative and unnecessary regulation caused by the 
National Cotton Council decision has real world consequences. 
In an August 4, 2015, letter to the Environment and Public 
Works Committee, the American Mosquito Control Association 

        Currently, mosquito control programs are vulnerable to 
        lawsuits where fines may be up to $35,000 per day for 
        activities that do not involve harm to the environment, 
        as is the standard under FIFRA, but rather simple 
        paperwork violations of the Clean Water Act (CWA). In 
        order to attempt to comply with this potential 
        liability, these government agencies must divert scarce 
        resources to CWA monitoring. In some cases, some 
        smaller applicators have simply chosen not to engage in 
        vector control activities.

    As a result, ``the regulatory burdens are potentially 
depriving the general public of the economic and health 
benefits of mosquito control.''
    An August 4, 2015, letter to the Committee from nearly one 
hundred agricultural companies and organizations echoes this 

        Compliance with the NPDES water permit also imposes 
        duplicative resource burdens on thousands of small 
        business and farms, as well as the municipal, county, 
        state and federal agencies responsible for protecting 
        natural resources and public health. Further, and most 
        menacing, the permit exposes all pesticide users--
        regardless of permit eligibility--to the liability of 
        CWA-based citizen law suits.

                     Objectives of the Legislation

    The objective of S.1500 is to eliminate duplicative and 
unnecessary CWA regulation of pesticide applications that are 
already regulated at the federal level under FIFRA.

                      Section-by-Section Analysis



    (a) Use of Authorized Pesticides.--Subsection (a) amends 
section 3(f) of FIFRA (7 U.S.C. 136a(f)) by adding at the end a 
new paragraph (5). Paragraph (5) prohibits EPA or a state from 
requiring a CWA permit for a discharge from a point source into 
navigable waters of a pesticide registered under FIFRA, or the 
residue of such a pesticide, resulting from the application of 
such pesticide, except as provided in section 402(s) of the 
Federal Water Pollution Control Act (CWA).
    (b) Discharge of Pesticides.--Subsection (b) amends section 
402 of the CWA to add new subsection (s). Subsection (s) 
creates a CWA permit exemption for the discharge from a point 
source into navigable waters of a pesticide registered under 
FIFRA, or the residue of such a pesticide, resulting from the 
application of such pesticide, except in certain circumstances.
    The circumstances where pesticide use requires a CWA permit 
are (1) discharges resulting from the use of pesticides in 
violation of FIFRA, (2) CWA regulated storm water discharges, 
(3) discharges of manufacturing or industrial effluent, (4) 
discharges of treatment works effluent, and (5) discharges 
incidental to the normal operation of a vessel.
    (c) Report.--Subsection (c) requires EPA (in consultation 
with the Secretary of Agriculture) to submit a report within 1 
year to the Senate Environment and Public Works Committee, 
Senate Committee on Agriculture as well as the House Committee 
on Agriculture and the House Committee on Transportation and 
Infrastructure, with analyses and recommendations.

                          Legislative History

     In the 111th Congress, H.R. 1749 and S. 1269 were 
introduced to clarify that CWA permits are not required for the 
use of pesticides regulated under FIFRA. Related bills included 
S. 3735, H.R. 6087, and H.R. 6273.
     In the 112th Congress, the House passed H.R. 872, 
intended to address this issue. Related bills included S. 3605 
and S. 718.
     In the 113th Congress, H.R. 935 passed the House 
by a vote of 267-161. Similar language was included in the 
House-passed farm bill. However, the enacted farm bill did not 
include the House provision regulation of addressing pesticide 
use. Related bills included S. 175 and S. 802.
     On August 5, 2015 the Senate Committee on 
Environment and Public Works held a business meeting to 
consider S. 1500 (along with a number of other measures). S. 
1500 was ordered to be reported (without amendment) favorably 
to the full Senate.


    No committee hearings were held on S. 1500.

                             Rollcall Votes

    This bill was ordered favorably reported by voice vote.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee finds that S. 1500 
does not create any additional regulatory burdens.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act (UMRA) 
of 1995 (Public Law 104-4), the committee notes that the 
Congressional Budget Office found that ``S. 1500 contains no 
intergovernmental or private-sector mandates as defined in the 
UMRA and would impose no costs on state, local, or tribal 

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                                   August 20, 2015.
Hon. Jim Inhofe,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1500, the Sensible 
Environmental Protection Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Marin 
                                                        Keith Hall.

S. 1500--Sensible Environmental Protection Act of 2015

    S. 1500 would prohibit the Environmental Protection Agency 
(EPA) and states authorized to issue permits under the National 
Pollutant Discharge Elimination System (NPDES) from requiring a 
permit for some discharges of pesticides. Specifically, public 
and private entities would no longer need to obtain an NPDES 
permit for certain discharges of pesticides if their use is 
authorized under the Federal Insecticide, Fungicide, and 
Rodenticide Act, or in cases where the discharge is regulated 
as a stormwater, municipal, or industrial discharge under the 
Clean Water Act. The bill also would require EPA to submit a 
report to the Congress on the status of water quality 
protection and improvement.
    Based on information from EPA about the cost of preparing 
the report, CBO estimates that implementing this legislation 
would not have a significant cost. Any administrative savings 
to EPA that might result from issuing fewer permits would be 
negligible because EPA has delegated the authority to issue 
most NPDES permits to states.
    Pay-as-you-go procedures do not apply to S. 1500 because 
enacting the bill would not affect direct spending or revenues.
    S. 1500 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On March 25, 2015, CBO transmitted a cost estimate for H.R. 
897, the Reducing Regulatory Burdens Act of 2015, as ordered 
reported by the House Committee on Agriculture on March 19, 
2015. S. 1500 and H.R. 897 are similar; and the estimated 
budgetary effects are the same.
    The CBO staff contact for this estimate is Marin Burnett. 
This estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                             MINORITY VIEWS

    Passing laws that protect the lives and livelihoods of the 
American people is one of the most important activities that 
Congress undertakes. The Clean Water Act (CWA) is a law that 
prevents the uncontrolled pollution of the streams, rivers, and 
lakes where our children swim and that provide drinking water 
to millions of Americans. S. 1500 rolls back protection of our 
waters from pesticide pollution by eliminating Clean Water Act 
coverage and relying solely on the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) to regulate the use of 
    Both the CWA and FIFRA are necessary to provide important 
protections for the nation's waters and are not duplicative. 
FIFRA focuses primarily on labeling pesticides while the CWA 
requires water quality monitoring, reporting on pesticide use, 
and implementation of best practices to minimize pesticide 
pollution of our rivers, lakes, and streams.
    The EPA has determined that over 1,800 waterbodies, such as 
streams and lakes, are damaged because of pesticide use. Due to 
limited monitoring, the actual number of polluted waterbodies 
may be higher. In addition, the 2006 National Water-Quality 
Assessment (NAWQA) program of the USGS found at least one 
pesticide detected in water from all streams tested throughout 
the country. Pesticide compounds were detected throughout most 
of the year in streams located in agriculture (97 percent of 
samples), urban (97 percent of samples), and mixed land-use (94 
percent of samples) watersheds. USGS also found samples 
containing banned pesticides such as DDT in sediments and fish 
tissue. Finding these residual pesticides still present in so 
many watersheds indicates the long-term impact these pesticides 
have in the natural environment.
    Pesticide contamination of rivers and streams has also been 
confirmed by state water pollution control agencies. According 
to EPA's National Summary of State Information, States report 
that approximately 16,819 miles of rivers and streams, 1,766 
square miles of bays and estuaries, and 260,342 acres of lakes 
are currently impaired or threatened by pesticides--meaning 
that the particular waterbody fails to meet (or is threatened 
for) a particular use, such as a source of drinking water, 
fish, shellfish, and wildlife propagation, or recreation. EPA 
has also indicated that the number of State waterbodies 
currently impaired by pesticides may not reflect the actual 
number of impaired waters because states do not test or 
regularly monitor for a significant number of common 
    The potential for human exposure to pesticides through 
drinking water or other contact with water is an area of 
significant concern. Depending on the type of pesticide, an 
array of health implications can arise including: skin and eye 
irritation, nervous system impacts, impacts on adolescent 
development of children, hormone or endocrine disruption, or 
cancer. As noted above, the presence of pesticides in so many 
of the nation's waters increases the likelihood of physical 
contact or consumption of contaminated waters. There are many 
instances where the pesticide levels exceeded human health 
    On October 31, 2011, the EPA issued the Pesticide General 
Permit (PGP) under the CWA. The permit recognizes the important 
role of the CWA in restoring and maintaining the integrity of 
local water quality and the role FIFRA plays in uniformly 
labeling pesticides and indicating approved uses and 
restrictions. The fact that pesticide application has generally 
been governed by FIFRA for decades and yet so many of the 
nation's waters have detectable levels of pesticides indicates 
that FIFRA alone does not adequately protect water bodies from 
pesticide pollution. The CWA provides critical tools for 
protecting water quality.
    The PGP establishes a streamlined application and approval 
process for individuals that intend to apply pesticides into 
Waters of the United States. Below is a summary of the 
streamlined features of the PGP that ensure a basic level of 
water quality protection:
     Pesticide applicators must develop a Pesticide 
Discharge Management Plan that describes how the pesticide will 
be used, pesticide use monitoring plans, record keeping and 
reporting requirements.
     Operators that discharge pesticides over large 
areas must analyze efficient and effective ways to minimize 
pesticide discharges and evaluate pest management options, 
including alternatives to pesticides, considering cost 
effectiveness, water quality impacts and other factors.
     EPA's permit generally requires certain activities 
to be conducted either annually or prior to each application 
(such as assessing the levels of pesticides necessary to 
control the target pest) to ensure an appropriate amount of 
pesticide is applied.
     Operators must submit annual pesticide reports. 
These reports can be used to design future water quality 
sampling efforts to ensure water quality is maintained.
    These are not burdensome requirements. They simply ensure 
responsible pesticide use that protects water quality. In 
addition, the PGP includes emergency procedures to allow for 
spraying of pesticides to address a pest emergency that could 
affect public health. In such emergencies, pesticide 
applicators do not have to receive approval before applying a 
    One final concern with S. 1500 involves the failure to 
follow regular Committee procedure. A bill with far reaching 
impacts related to protection of human health and safety should 
have followed regular order and procedure and received an 
appropriate legislative hearing. Legislative hearings are an 
important part of the legislative process--allowing for public 
discourse about the pros and cons of proposed legislation and 
potential improvements to the legislation. Unfortunately, 
S.1500 did not undergo this important public review under 
regular order and instead was immediately brought up for a 
Committee vote. This is completely inappropriate for a bill 
with such significant public health consequences and strong 
opposition on the Committee.
    For the substantive concerns with the legislation, and the 
procedural failures, we oppose S. 1500.
                                   Barbara Boxer.
                                   Benjamin Cardin.
                                   Bernard Sanders.
                                   Sheldon Whitehouse.
                                   Jeff Merkley.
                                   Kristen Gillibrand.
                                   Cory Booker.
                                   Edward Markey.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

           *       *       *       *       *       *       *


           *       *       *       *       *       *       *


  (a) Short Title.--

           *       *       *       *       *       *       *


  (a) Requirement of Registration.--Except as provided by this 
Act, no person in any State may distribute or sell to any 
person any pesticide that is not registered under this Act. To 
the extent necessary to prevent unreasonable adverse effects on 
the environment, the Administrator may by regulation limit the 
distribution, sale, or use in any State of any pesticide that 
is not registered under this Act and that is not the subject of 
an experimental use permit under section 5 or an emergency 
exemption under section 18.
  (b) Exemptions.--A pesticide which is not registered with the 
Administrator may be transferred if--
          (1) the transfer is from one registered establishment 
        to another registered establishment operated by the 
        same producer solely for packaging at the second 
        establishment or for use as a constituent part of 
        another pesticide produced at the second establishment; 
          (2) the transfer is pursuant to and in accordance 
        with the requirements of an experimental use permit.
  (c) Procedure for Registration.--

           *       *       *       *       *       *       *

  (f) Miscellaneous.--
          (1) Effect of change of labeling or formulation.--If 
        the labeling or formulation for a pesticide is changed, 
        the registration shall be amended to reflect such 
        change if the Administrator determines that the change 
        will not violate any provision of this Act.
          (2) Registration not a defense.--In no event shall 
        registration of an article be construed as a defense 
        for the commission of any offense under this Act. As 
        long as no cancellation proceedings are in effect 
        registration of a pesticide shall be prima facie 
        evidence that the pesticide, its labeling and packaging 
        comply with the registration provisions of the Act.
          (3) Authority to consult other federal agencies.--In 
        connection with consideration of any registration or 
        application for registration under this section, the 
        Administrator may consult with any other Federal 
          (4) Mixtures of nitrogen stabilizers and fertilizer 
        products.--Any mixture or other combination of--
                  (A) 1 or more nitrogen stabilizers registered 
                under this Act; and
                  (B) 1 or more fertilizer products,
        shall not be subject to the provisions of this section 
        or sections 4, 5, 7, 15, and 17(a)(2) if the mixture or 
        other combination is accompanied by the labeling 
        required under this Act for the nitrogen stabilizer 
        contained in the mixture or other combination, the 
        mixture or combination is mixed or combined in 
        accordance with such labeling, and the mixture or 
        combination does not contain any active ingredient 
        other than the nitrogen stabilizer.
          (5) Use of authorized pesticides.--Except as provided 
        in section 402(s) of the Federal Water Pollution 
        Control Act (33 U.S.C. 1342), the Administrator or a 
        State shall not require a permit under that Act for a 
        discharge from a point source into navigable waters 
                  (A) a pesticide authorized for sale, 
                distribution, or use under this Act; or
                  (B) the residue of the pesticide, resulting 
                from the application of the pesticide.

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Federal Water Pollution Control Act

           *       *       *       *       *       *       *

  Sec. 101. (a) The objective of this Act is to restore and 
maintain the chemical, physical, and biological integrity of 
the Nation's waters. In order to achieve this objective it is 
hereby declared that, consistent with the provisions of this 

           *       *       *       *       *       *       *

  Sec. 402. (a)(1) Except as provided in sections 318 and 404 
of this Act, the Administrator may, after opportunity for 
public hearing, issue a permit for the discharge of any 
pollutant, or combination of pollutants, notwithstanding 
section 301(a), upon condition that such discharge will meet 
either (A) all applicable requirements under sections 301, 302, 
306, 307, 308, and 403 of this Act, or (B) prior to the taking 
of necessary implementing actions relating to all such 
requirements, such conditions as the Administrator determines 
are necessary to carry out the provisions of this Act.

           *       *       *       *       *       *       *

  (r) Discharges Incidental to the Normal Operation of 
Recreational Vessels.--No permit shall be required under this 
Act by the Administrator (or a State, in the case of a permit 
program approved under subsection (b)) for the discharge of any 
graywater, bilge water, cooling water, weather deck runoff, oil 
water separator effluent, or effluent from properly functioning 
marine engines, or any other discharge that is incidental to 
the normal operation of a vessel, if the discharge is from a 
recreational vessel.
  (s) Discharges of Pesticides.--
          (1) No permit requirement.--Except as provided in 
        paragraph (2), a permit shall not be required by the 
        Administrator or a State under this Act for a discharge 
        from a point source into navigable waters of--
                  (A) a pesticide authorized for sale, 
                distribution, or use under the Federal 
                Insecticide, Fungicide, and Rodenticide Act (7 
                U.S.C. 136 et seq.); or
                  (B) the residue of the pesticide, resulting 
                from the application of the pesticide.
          (2) Exceptions.--Paragraph (1) shall not apply to the 
        following discharges of a pesticide or pesticide 
                  (A) A discharge resulting from the 
                application of a pesticide in violation of a 
                provision of the Federal Insecticide, 
                Fungicide, and Rodenticide Act (7 U.S.C. 136 et 
                seq.) relevant to protecting water quality if--
                          (i) the discharge would not have 
                        occurred without the violation; or
                          (ii) the amount of pesticide or 
                        pesticide residue in the discharge is 
                        greater than would have occurred 
                        without the violation.
                  (B) Stormwater discharges subject to 
                regulation under subsection (p).
                  (C) The following discharges subject to 
                regulation under this section:
                          (i) Manufacturing or industrial 
                          (ii) Treatment works effluent.
                          (iii) Discharges incidental to the 
                        normal operation of a vessel, including 
                        a discharge resulting from ballasting 
                        operations or vessel biofouling