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Regulation of. Sewage Disposal from Houseboats: An Assessment of the Problem and Recommendations for the Future a report submitted to the Virginia Department of Health by the Virginia Water Resources Research Center Virginia Polytechnic institute & State University 617 North Main Street Blacksburg, VA 24060 703/231-5624 Phyllis G. Bridgeman Carol J. Haley Carolyn J. Kroehler William R. Walker Diana L. Weigniann December 1989 Table of Contents General Overview of Federal and Virginia Activities on Sewage Discharges from Houseboats ...................................................................1 Literature Review: Sewage Di!scharges from Houseboats ........................................3 Trends in Houseboat Use .............................................................................................6 Boat Sales ..............................................................................................................................6 Effect of Real Estate Availability and Cost on Houseboat Use ..........................................7 Influence of Potential Land Use Regulations on Houseboat Use ......................................7 Houseboat Residency Study ........................................................................................8 Development of the Study .............................. ......................................... ...........................8 Results of the Study: Houseboat Survey .............................................................................8 Results of the Study: Interviews with HOLIseboat Occupants .............................................9 Results of the Study: Additional Comments ...................................................................... 10 State Concerns and Ap'proadhes ............................................................................... 10 Concerns ............................................................................................................................... 10 States' Approaches to Regulating Houseboat Sanitation ................................................ 11 Definition of Houseboats ................................................................................................ 11 State Statutes, Regulations, and Policies for Control of Houseboat Sanitation ...................................................................................................... 12 Virginia's Laws and Regulations ................................................................................... 13 Future Approaches ......................................................................................................... 14 Local Concerns and Approaches .............................................................................. 14 Virginia Localities ................................................................................................................ 15 Special Use Permit ......................................................................................................... 15 Conditional Zoning .......................................................................................................... 15 Houseboats as Structures .............I.................................................................................. 15 Other Localities ........................................................ ......................... ................................... 15 Recommendations ...................................................................................................... 16 Houseboat Definition ........................................................................................................... 16 Introduction ..................................................................................................................... 16 Definition .......................................................................................................................... 16 Comment ......................................................................................................................... 17 Recommendations for Actions at the State Level ............................................................ 17 Recommendat ions for Actions at the Local Level ............................................................ 19 Enforcement Issues ............................................................................................................. 20 Future Research and Study ................................................................................................ 21 References .................................................................................................................. 23 Tables Table 1. Calculated Indices of the Potential Abundance of Houseboats in the 16 Localities with VDH Houseboat Survey Data ..................................... 24 Table 2. Indicators of Houseboat Use for Six Virginia Localities Identified as Potential "Problem Areas" in the State ...................................... 25 Figures Figure 1. Numbers of Registered 26'-40' Motorboats in the United States ................... 26 Figure 2. Numbers of Registered 26'-40' Motorboats in Selected States ..................... 27 Figure 3. Distribution in Virginia of Counties with Marinas, Counties with Houseboat Survey Dalla, and Counties with Houseboat Occupant Interview Data .................................................................................... 28 General Overview of Federal and Virginia Activities on Sewage Discharges from Houseboats This report has been prepared for (tie Virginia Department of Health (VDH) to help evaluate the magnitude of tile state's potential problem with moored vessels used for long-term oc- cupancy (hereinafter referred to as houseboats) and the disposal/Ireatment of their sewage wastes. In September 1988 the Virginia Department of Health (VDH) received a Virginia Coastal Resources Management Program grant from the Council on tile Environment (through Federal Coastal Zone M6nagernent funding) to determine tile magnitude of pol- lution to Virginia waters from houseboats. Specifically, the objectives of tile grant were: 1. To survey Virginia marinas (and "other places where boats are n7loored," to be referred to as marinas in this report) arid houseboat Occupants to determine tile number of boats being used as houseboats and the potenlial for overboard discharge. of sewage frorn these vessels; 2. To assess tile adequacy of existing state laws and regulation,-; to address tile problem of houseboat sewage discharge; and 3. To make recommendations to solve tile prOblenl, inGlUdiilg new legislation, amendments to existing laws, arid new regulations at the state or local level. . Because the question of how to regulate discharges from houseboats grew out of a larger national effort to prevent water pollution arid the state's response to related federal man- dates, it is instructive to look at events impelling the state to develop specific controls for houseboats. Virginia has struggled for many years to balance the needs of competing water uses. Rec- reational and commercial boating arid fishing. swimming, using for drinking water supply. and discharging wastewater effluent into receiving waters are frequently incompatible. Since 1967 when the Marine Rosources Study Commission reported to tile General Assem- bly that "there is a serious problern resulting from boats at marinas and other places where boats congregate," tile stale has looked for the best approach to control boat pollution, forestall the condemnation of shellfish growing waters, protect the nrational certification that allows Virginia shellfish to be marketed in interstate commerce, and enlist cooperation rather than antagonism from the recreational and commercial boaters who regularly use tile same waters. The legislative effort started in 1968 when Virginia lawmakers directed the Virginia Water Control Board (VWCB) to establish a program for controlling sewage discharge from boats and vessels in all state waters. In (lie same session of the General Assembly, the lawmak- ers directed the VDH to set rninirnum requirernents for marina sewage facilities. By 1969, the VDH had adopted regulations requiring marinas to have a way to pump or otherwise remove sewage from boats. The following decade brought new initiatives from the federal government to prevent the discharge of untreated or inadequately treated sewage into navigable waters. The U.S. En- vironmental Protection Agency (EPA) set performance criteria for flow-thr Iough marine sani- tation devices (MSDs) that would allow boats with installed toilets to discharge treated wastes. These federal standards affected the course of Virginia's efforts to adopt a no-dis- charge standard for all state waters. In the 1972 amendments to federal water pollution control law, Congress inserted provisions that would allow states to petition EPA for the right to completely prohibit vessel discharges in specified waters. This historic law also laid down a new goal for the nation-to have "fisliable/swimmable" waters, a goal that was re- emphasized in recent 1987 amendments to the Clean Water Act. In Virginia "boalable" clashed with "fishable" in that year of 1972. Tile VDH was forced to condemn approximately 17,000 acres of shellfish growing waters in or-der to preserve tile state's certification under the National Shellfish Sanitation Program, which sets standards for shellfish entering interstate commerce. About 4,500 acres were condernned directly be- cause of boat pollution, and boat pollution contributed to tile overall problem it) the renlain- ing areas. The VWCB adopted regulations the following year requiring boats with toilets to have sewage retention systems for use in all waters of the stale by 1975. By 1975, however, public pressures had persuaded tile General Assembly to anlend state water conlrol law and prohibit any VWCB regulations more restrictive than federal standards (i.e., frorn requiring holding tanks in all state waters when EPA allowed flow-through devices as long as they were closed within the three-mile lit-nit). VDH regulations also were criticized, and the leg- islature ordered a review of inarina purnpoul rules. In 1975, following the reconlinenclaiions of an independent study, the VDH tnade its requirements for onshore loilet facilities less stringent but retained its pumpout and sewage treatment requirements. During that time, many Virginia marinas complained that it was senseless to force them to construct pumpout facilities because there was no demand for thern, and sorne boalers justified tile practice of direct discharge because facilities were not readily available, Meanwhile, national debate continued oil the effectiveness of flow-through MSDs and whether tile Chemicals used in sewage treatment could cause other water quality problems. The EPA and Coast Guard were still in the process of testing and approving acceptable treatment devices, and a great deal of confusion as well as controversy continued over tile safety of MSID discharges in sensitive waters, Such as shellfish growing areas. The State Board of Health passed a resolution in 1977 recommending the enforcement of regulations requiring holding tanks and purnpout facilities, and the stage Was thLIS set for the necessity of special water quality protection efforts in waters designated as sensitive. Tile VDH and the VWCB went to court for enforcement and clarification of their regulations. In 1978 the VDH's regulations Aere upheld during a series of suits to force compliance by selected marinas. With judicial support of the requirement for pumpout facilities, the VWCB and VDH filed a petition with EPA to certify adequate pumpout facilities in a proposed no- discharge area of the Rappahannock River. More suits were filed against selected marinas. The following year was frustrating, as Virginia's two lead agencies in controlling the effects of boat pollution tried to establish a program that conformed to bobi state and federal guidelines. By January of 1980 the state asked for judicial help in clarifying the limits of federal law in preempting tile VWCB from requiring holding tanks in "no-discharge" areas. Informal EPA opinions at the time held that states could prohibit discharges only in desig- nated areas approved by the federal agency. EPA did not certify the availability of adequate facilities in the proposed zone but deferred taking final action on the state's request. In all ironic twist, the court took note of EPA's action and dismissed the state's suit in September 1980, noting that it was not "ripe for adjudication" since EPA had not ruled on tile no-dis- charge petition and the court's opinion would therefore be merely advisory. Clearly, the state's best attempts to balance water quality protection with water uses were complicated by the need to coordinate these multiple jurisdictional authorities and regulations. In the years since VDH and VWCB both developed regulations, the state's approach to con- trolling boat pollution has depend?2*d a great deal on developments in the federal mandate to the states. By 1983 the Coast Guard recommended that federal MSID requirements for small vessels be abolished and that states be allowed to have their own programs or to have no program. Eventually, in 1987, federal law was amended to permit states to assurne reg- ulatory responsibility for the use of MSIDs on houseboats ["a vessel which, for a period of time determined by the State in which the vessel is located, is used primarily as a residence and is not used primarily as a means of transportation"-P.L. 100-4, �311, 101 Stat. 42 (1987)). States now may adopt and enforce a statute or regulation on the design, manufacture, in- -2- stallation, or use of any MSD on a houseboat as long as these are more stringent than fed- eral standards. Currently, Virginia's means of regulating sewage discharge from houseboats include tile VDH's regulations governing sanitary facilities associated Willi boating activities ("Sanitary Regulations for Marinas and Boat 'Moorings") arid the VWCB's regulation to control water pollution frorn boating activities (Regulation No. 5), which requires that boats in shellfish growing areas have sewage retention devices. All vessels ill Virginia and elsewhere in tile nation that have installed toilets must be equipped Willi MSDs. Vessel owners with facilities for sewage discharge are not required to [lave a Virginia Pollutant Discharge Elimination Systern (VPDES) permit. althotigh all other dischargers of poll(itants into surface waters are,. To respond to tile 1987 federal authorization, Virginia's task is to determine the scope of the state's problem specifically with houseboat discharges. define what kind of vessels should be designated for special MSD requirements, and decide if tile slate Will undertake en- forcement responsibility. Willi these decisions, state regulations call be modified to reflect the special controls to be placed on houseboat discharges. How much of a potential problern is sewage discharge specifically froun houseboats in Vir- ginia? The U.S. Coast Guard is the enforcement agency for MSDs, and checks for illegal sewage discharges are made during routine safety inspections, Last year the Coast Guard issued 200 citations for illegal sewage discharges into Virginia waters. Houseboats could be of special concern; because they are moored, houseboats are rarely inspected for their discharges by the Coast Guard. Local building officials and health departments do not ex- ercise jurisdiction over houseboat occupancy, and, according to the VDH, few localities have taken any actions to regulate houseboat sewage disposal at the local level. Further, tile places where houseboals are regularly docked often are still, shallow waters that lack ade- quate flushing. Such waters are particularly sensitive to degradation from sewage inputs. Recent activities by the Chesapeake Bay Commission may affect Virginia's decisions about the regulation of sewage disposal from houseboats. In a September I!J89 meeting, it was suggested that the majority of the estimated 50,000 boats with instalted toilets located within Chesapeake Bay waters most likely discharge sewage directly to receiving waters; even those boats with holding tanks may have all illegal by-pass that allows direct discharge. General agreement among Maryland officials, J. Arnson (EPA's manager of tile National Marine Sanitation Device Program), and results of a Virginia telephone survey of boating dealers indicates that pumpout facilities at marinas are not being used and that many newly manufactured boats Willi installed toilets are not being equipped Willi approved MSDs. The Chesapeake Bay Commission recommended in September that a federal inspection prograrn of new boat construction was needed to enforce compliance. with current MSD standards. The Commission also adopted a resolution calling for the Bay states to work toward desig- nation of the whole Chesapeake Bay and its tributaries as a no-discharge zone. Literature Review: Sewage Discharges from Houseboats To identify research literature related to houseboats and water quality concerns, a search of seven electronic databases was conducted: Water Resources Abstracts, NTIS, Pollution Abstracts, GPO Monthly Catalog, Biosis Previews, Environmental Bibliog raphy, and Legal Resource Index. Various terms for houseboats (including houseboat, boat houses, live- aboards, pontoon boat, cabin cruiser, yacht, floating home, floating vessel, recreational wa- tercraft, and resident vessel) were combined with such key words -as sewage disposal, wastes, marine sanitation devices, treatment facilities, pumpout facilities, environmental sanitation, and health hazards. The search found only three citations specific to houseboats and wastes (or their related terms) but showed a number of items oil recreational vessel discharges. Other materials used in this disciission were provided by agency officials and researchers in other states. Although there is a (]earth of information specifically evaluating the impact of sewage dis- charges from houseboats, it is clear that the literature reflects ail ongoing public debate over the question of public health threals that might be associated with recreational vessel dis- charges. The concerns range from aesthetically offensive discharges in areas where boats congregate to direct contact with boat sewage during swimming. Also included are tile concerns raised by recreational and commercial fisheries that share their territory with marinas and other places where pleasure boats congregate: shellfish 1,,arvesling areas Call be closed permanently or seasonally because of these C011fliCling uses. Even the federal requirement to have marine sanitation devices (MSDs) that treat sewage before discharge is raised as a potential problern if the treatment chemicals contribute to water quality deg- radation. In addition, widespread noncompliance with IVISD installation oil new boats with toilets and frequent bypassing of holding tanks and shoreside pumpout facilities in favor of direct discharge of untreated wastes are nienlioned as problems of enforcement ail(] edu- cation. This larger body of research oil discharges from recrealional boats raises many concerns about pollution threats but also notes that other sources of degradation (e.g., discharges from municipal sewage treatment plants) account for a much greater proportion of the water quality problem. Nevertheless, the problern is not tile volume of wastes from watercraft but the time and place of file discharges that degrade water quality (Seabloom, Plews, and Cox 1989). Subsequently, the regulatory emphasis has been refined to focus on lhe pollution caused by many boats discharging into small sheltered inlets or marina areas and over- whelming the dilution potential of shallow waters that do not have adequate flushing. The threat of concentrated boat wasles that do not disperse easily may raise both public health questions and the possibility that increased biochemical oxygen demand (BOD) will create 1. oxygen-poor" bodies of water. Clearly, boats with sleeping. eatin.g, and bathing facilities that are regularly moored in one location and are not used generally for transportation are more likely to be the offending dischargers than transient vessels used for recreation. Two early studies on houseboat wastes in Oregon reflect a concern for waste quality, quan- tity, and BOD measurements. Clark's (1967a) study of methods for collecting and treating houseboat wastes notes that the discharge is similar in quantity and quality to domestic waste. The average per capita residential sewage flow reported at the.time of this study was 75 gpd, including toilet, kitchen, bath, and laundry wastes for a single"farnily dwelling. A companion study (Clark 19671)) of houseboat waste characteristics and treatment found that the average per capita BOD5 was 43 J: 3 gpd and tile average per capit'a suspended solids count was 34 �7.1 gpd., Grease and oil in houseboat waste were reported to be higher (Ilan in normal domestic sewage and waste. Oregon has a long history of regulating sewage disposal from floating fu!l-time residences; the state passed legislation in 1965 to prohibit the discharge of sewage from any building or structure, defined to include houseboats. Schmidt (1971) details the technical and regu- latory problems faced by the state and the early enforcement efforts when tile Oregon De- partment of Environmental Quality went into court to pursue misdemeanor charges and possible sentences of $1000 or one year in prison, or both. Few convicted violators were fined, and all were given up to 60 days to comply with the law. Many were able to connect to an interceptor sewer in only one weekend. 4- Another state with considerable experience in houseboat use is California. A staff report for the San Francisco Bay Conservation and Development Commission (19K) distinguishes between houseboats used primarily as residences and liveaboard vessels occupied for ex- tended periods but capable of being used for "active self-propelled navigation." The report notes that liveaboards generally have no more impact than other moored boats but house- boat discharges can increase secUrnentation rates and change sedimentation patterns in mooring areas. The reduction of wind and wave action in shallow waters stills Ille waler, and thus dredging has become one issue associated with houseboals in California. Gov- ernment Code �66632(a) includes houseboats and boats moored for extended periods of time as examples of "fill" requiring a permit for placement. In addition to sedimentation. sewage and graywater detrimentally affect water quality by introducing coliform bacteria, soap residues, substances that increase BOD, suspended solids, oil. grease, an(] biostirnu- latory substances such as nitrogen and phosphorus. The report also discusses how resi- dential boat uses conflict with other water uses (public recreation, fish and wildlife habitat, and public access). Citing the Commission's authority to protect the public trust and tradi- tional public trust uses of tidelands and submerge(] lands, such as navigation, fishing, boat- ing, commerce, wildlife. and open space, the report notes Ilia[ private residential uses are inconsistent with public easement rights and clo not serve any "statewide purpose." In 1986 Washington created a 'water quality authority to develop a comprehensive- plan for water quality protection in the Puget Sound. One element of the plan was the development of a model ordinance (Washington State Department of Social and Health Set-vices 1989b) requiring slipside purnpouts (sewer hookups) or other sewage disposal methods by livea- boards that could be used voluntarily by localities. The model ordinance distinguishes be- tween cruising and noncruising liveaboard vessels. Noncruising types must'be connected to the marina sewerage system, which must be connected to an approved local shoreside sewer, or r-nay use a self-contained biological or cornposting toilet or an incinerating toilet. "Porta-potties" and self-contained recirculating chemical toilets are not allowed by the model ordinance. Cruising live@board vessels must be authorized as residences (overnight accommodations for more than lour nights within seven clays) by (lie marina supervisor and rriust not be permanently attached to the dock (these vessels must leave the marina waters at least once every 90 days). Direct discharge toilets and Type I and.11 IVISDs must be phy- sically disconnected. A report accompanying the model ordinance (Washington State De- partment of Social and Health Services 1989a) summarizes current technology to mitigate the pollution potential from liveaboard vessels. The report notes that major changes to on- board plumbing systems will generally be required and marinas will have to make consid- erable effort to provide the slipside sewer system. New Jersey also has made recent efforts to begin regulating watercraft sewage disposal. State legislation in 1988 generally deals with the provision of portside collection devices, but liveaboard vessels are specifically addressed. All rnarinas allowing liveaboard arrange- ments may be required by future regulations to provide continuous or regular interval slip- side pumpout service in which each slip has access to the purnpoul system; the cost of buying and installing these large systems, however, starts at $20,000 (New Jersey Depart- ment of Environmental Protection, Division of Coastal Resources 1989a). Because of this expense, the state is proposing to require retrofitting with these systems only if it is docu- mented that overboard discharges are creating water quality problems. Not only does this approach solve the pollution problem, but it also provides an incentive for marina owners to prevent their patrons from overboard discharging (New Jersey Department of Environmental Protection, Division of Coastal Resources 11989b). Exemptions could be granted to marina owners who demonstrated that they do not allow liveaboard vessels. An article in Zoning and Planning Law Report (1984) summarizes a federal court of appeals ruling that affirmed the right of a New Jersey -township to prohibit "floating homes" (defined as permanent dwelling units an(] distinguished from "houseboats," which are not designed as residential dwelling units). The court also held that the ordinance was not preempted by federal laws related to ship licenses and water pollution control. A 1989 case under consideration in Connecticut deals with a contention by floating home owners that floating homes are "vessels," not "structures," and do not require permits for their placernent. A brief filed by the state's Department of Environmental Protection (Bolton, Gadzik, and Towbin 1989) points out that the. National Electric. Code has standards for "floating buildings." Noting that housing is neither a necessary nor all acceptable use of public trust lands and waters, the brief also argues that floating hornes do not promote tra- ditional public uses such as navigation. boaling. or fishing an(] actually diminish and com- pete with legitimate water-dependent uses. Trends in Houseboat Use Boat Sales Boats most likely to be used as houseboats are approximately 30 feet or longer. According to the National Marine Manufacturers Association, twice as many boats in the 30-foot and longer size classes were sold in 1988 as in 1980. The Coast Guard's Office of Boating, , Public, and Consumer Affairs has a computerized database of registered motorboats that is another reliable means of tracking trends in boat use over time. National figures of regis- tered motorboats in the 26-foot to 40-foot size class increased approximately 130 percent between 1980 and 1988 (Figure 1). Although boats larger than 40 feel, can also be lived on, Coast Guard figures for these are not provided because at sizes greater than 40 feet boats are most likely to also be over five net tons and thus have to be documented; docurnented boats do not have to be r 'egistered. Numbers for cate.gories over 40 feet. therefore, would not accurately reflect the number of registered boats. Numbers of documented boats were not included because many of these are commercial boats and would not be used as houseboats in the sense intended in this report. Numbers of registered boats for selected states, including Virginia, for the years 1980-1986 are shown in Figure 2. In Virginia, there has not been a steady increase in the number of boats. Numbers of registered motorboats in the 26-foot to 40-foot size class ill Virginia for 1987 and 1988 were 5,389 and 5,503. Tile number of registered boats ill this size class ranged from a low of 5,043 in 1984 to a high of 6,600 in 1982. (The high number in 1982 is probably the result of lowered gasoline prices after rather high prices in 1980 and 1981, ac- cording to Nancy Jamerson at the Titling Office of the Department of Game and Inland Fish- eries in Richmond.) This sudden increase in 1982 was seen also in the total [lumber of registered boats for the entire country (Figure 1). Although there was a fairly steady in- crease in the number of boats registered in Virginia between 1984 all(] 1988, the number of boats registered in 1988, 5,503, is -*bnly about 9 percent higher than that in 1984. Note that five of the seven states in Figure 2 also show increasing numbers of boats since 1984. Figure 2 also shows the numbers of registered motorboats in the 26-foot to 40-foot size class for Middle Atlantic and southeastern states that expressed concern about houseboats ill the Water Center's state survey. Most of these states have shown generally increasing numbers of boats in the size class of interest. Of the states surveyed concerning houseboat sewage regulation, six were "llo-clischarge" states. In spite of these stringent regulations, four of these states (Michigan, Ohio, Illinois, and Wisconsin) have shown a steady increase ill boat registrations since 1983. Michigan has -6- the greatest number of regislered boats ill this Si7P_ class arid also file greatest rate of in- crease since 1983. It is apparent that in spite of incre asingly stringent environmental requirements, tile number of boats sold in this size class will continue to increase. Virginia, with its increasing coastal growth (which will probably lead to increased land and house prices and taxes) and rela- tively mild climate, will no doubt see all increase in the number of boat owners using their boats as residences for at least part of the year. Effect of Real Estate Availability and Cost on Houseboat Use A number of state and local officials interviewed attributed the popularity of houseboats to tile price and availability of waterfront real estate and the lack of real estate taxes for houseboats. Prince William County waterfront property, which is already 80 percent devel- oped, was estimated at $300,000 all acre, and even a townhouse costs approximately $100,000. A local official in Hopewell indicated that escaping real estate taxes was a big in- centive for living on a houseboat. In Pulaski County, although only approximately 25 percent of Claytor Lake's shoreline is developed, much of it will not be developed because of steep slopes unsuitable for building. In this case, lack of available waterfront real estate more than exorbitant price nrlay result ill increased use Of hOUseboats. Outside Virginia, several state officials agreed that property prices and real estate taxes provide incen(ive for people to use houseboats as permanent residences or second homes. In New Hampshire, houseboats are used primarily as vacation homes, with people living on them all summer or for weekends and vacation weeks during the summer. As tile New Hampshire contact pointed out, if people want to use lakes for recreation and they build a cottage or summer home, they still have to buy a boat to get out on tile 'Water. If they buy just the boat, they call use it for both recreation and a dwelling at a fraction of tile cost. Property around New Harripshirp's major lake sells for $2,000 a waterfront foot, not an ill- significant cost. Texas, likewise, indicated that houseboats allow people to enjoy water recreational activities for less cost than building near or on the watei-front. In Washington. D.C., houseboats are more likely to be used as permanent residences for financial reasons unrelated to recreation. Property taxes of $2,000 can be avoided by living on a houseboat, and although houseboats are not inexpensive they are certainly cheaper than sorne of tile cheapest housing in the District. Some houseboats at marinas near- Washington's fishing wharves are even used as boarding houses, with fish market workers from nearby islands bunking in a boat five nights a week and returning home for the weekend. As ill Prince William County, Washington also has its share of "floating hornes"-houses that could be built on land but are floated oil pontoons at a marina instead. In Maryland, the concern that local government tax bases were being eroded by increased use of houseboats as perma- nent residences led to strong local support for stringent state regulations. Influence of Potential Land Use Regulations 017 Houseboat Use Only one of the Virginia localities contacted specifically mentioned restrictions on develop- ing waterfront property as an incentive for houseboat use. In Prince William County, a failed perk test prevented someone from building on waterfront property. The person's response was to build a two-story wood-frame townhouse and float it on thewater at a marina. This provides one illustration of the use of "houseboats" to get around building restrictions oil land. As concern about nutrient and pollutant influx into Virginia's waters increases, more stringent land use regulations for shorefront property may have a similar effect. Ill Bath County, the entire Lake Moornaw watershed. is designated a "conservation area," and tile minimum lot size for houses is four acres. Mille this kind of planning will probably do much -7- to protect water quality, it may also serve to increase hoklS(IbOat Use, as the, area becomes more popular for recreation. it is possible that public access to recreatimial walers also affecls houseboat popularity. If access to a lake or reservoir is limited because it is all privately owned or developed, there may be more incentive to live oil a houseboat just SO that it is More convenient to get to the water to swim, picnic, sun, water ski, and fish. The availability of pub!ic picnic grounds, swimming areas, campgrounds, moderately priced motels, and small watercraft launches may make it less desirable to invest in a houseboat for occasional recreational use. Houseboat Residency Study Development of the Study As mentioned earlier in this report, in September 1988 tile Virginia Department of Health (VDH) received a Virginia Coastal Resources Management Program grant from tile Council on the Environment (through Federal Coastal Zone Management funding) to determine the magnitude of pollution to Virginia waters from houseboats. In this section, tile results of tile first objective of the VDH houseboat study are presented: to survey Virginia marinas (and .. other places where boats are moored," to be referred to as marinas in this report) and houseboat occupants to determine the number of boats being used as houseboats and tile potential for overboard discharge of sewage frorn these vessels. Before this study was done, information about houseboats in Virginia was unavailable. The numbers of house- boats in use in the state were not known; neither were any data available that might provide some indication of flow many boats in use as houseboats are discharging sewage to Virginia waters. Two survey instruments were Asigned by a VDH Houseboat Study Committee to address these questions. One survey was developed to gather information about the numbers of boats that might be used as houseboats at Virginia marinas. This "houseboat survey" in- cluded items to determine the number of boats used as primary resrdences, tile numbers of people occupying boats, and connections for water, sewer, and electrical power. Tile survey also categorized boats by size classes and the amount of time people spend living on board. VDH sanitarians completed houseboat survey forms for each of tile 922 marinas in the state. The second survey was designed to collect data from houseboat occupants themselves. It included questions about tile use of marine sanitation devices (MSDs); food preparation, shower, and toilet facilities; the [email protected] of berths oil board and the number of persons living aboard; and other questions aimed at determining the amounts of wastewater generated and methods for disposal. VDH sanitarians surveyed houseboat residents in person. Results of the Study: Houseboat Survey According to VDH information, Virginia has a total of 922 marinas in 51 counties and inde- pendent cities (Figure 3). Of these 922, usable data relating to houseboat use (or potential houseboat use) were collected by VDH sanitarians for 108 marinas. These 108 marinas are located in 16 of the total 51 counties and independent cities with marinas, and all but Bedford are in the Chesapeake Bay watershed. The cities and counties with useful survey data are Accomack, Alexandria, Bedford, Chesterfield, Fairfax, Gloucester, Hampton, Henrico, Lan- caster, Mathews, Middlesex, Norfolk, Northumberland, Prince William Suffolk, and Virginia Beach. Data summarized in the following paragraphs are frorn these 16 localities. A variety of indicators can be used to estimate the total number of vessels in use as houseboats in Virginia. Some of ihe houseboat survey questions provided direct evidence of the use of vessels as houseboats. For example, a total of 116 boats were reported to be used as primary residences. Nearly 700 boats are connected to onshore water supplies, suggesting use of water (and generation of wastewater) while moored. Almost 1,800 are connected to electric power, and, of these, 628 boats have separate electric meters. Ap- proximately 43 percent of the slips in the 108 surveyed marinas are occupied by boats that have sleeping, food preparation, and toilet facilities: a total of 3,623 boats are so equipped. Only half the boats at surveyed marinas were reported to be out of their slips at least once per month, indicating either that these boats get little use for transportation or recreational purposes or that they are used as stationary residences. Another indication that a boat may be used as a houseboat is the length of time it is occu- pied. At the 108 marinas surveyed. 796 boats are reported to be occupied for 31 to 90 days, 15 for 91 to 180 days, and 94 for more than 180 days. A total of 905 boats are occupied for longer than 30 days. The data collected through the VDH 110LISP-boat survey show that vessels potentially used as houseboats are found most frequently in six localities (Table 1). If sewage discharge from houseboats is a problem in Virginia, then these areas might be expected to show the effects of such pollution. The use of three indices of potential houseboat concentrations (see Table 1 footnotes for explanation) suggest that Fairfax. Gloucester. Lancaster, Middlesex, Norfolk, and Virginia Beach are localities that might have numbers of houseboats high enough to result in sewage discharge problems. Some of the variables that indicate a vessel may be in use as a houseboat (number of days of occupation, usp as primary residence, and con- nections to water, electric, and sewer) are prPsented for these six loc.:ilities in Table 2. The above summaries provide some information about the potential numbers of houseboats in use in Virginia. Whether tho@e houseboats are discharging sewage to state waters is another question. Nearly all the marinas surveyed (93 percent) had onshore toilet facilities. However, close to half of tile surveyed marinas (42 percent) had no pumpout facilities for the disposal of sewage from boat holding tanks. Marinas with no purnpPut facilities are located in Accomack, Alexandria, Chesterfield, Gloucester, Hampton, Lancaster, Mathews, Middle- sex, Norfolk, Northumberland, and Virginia Beach; five of those are localities identified as having significant numbers of potential houseboats (Table 2). In Virginia Beach, 11 of 16 marinas have no pumpout facilities. and in Norfolk, 14 of 24 marinas have no pumpout facil- ities. Approximately 18 percent of boats with rocking, sleeping, and toilet facilities are lo- cated at marinas with no pumpout facilities. Results of the Study: Interviews with Houseboat Occupants Interviews with houseboat occupants were conducted by VDH sanitarians during tile work day. Unfortunately, very few people thought to be living on houseboats were at home; san- itarians suggested that most people living oil houseboats also work and were simply un- available for questioning during the day. Indeed, data frorn the houseboat survey indicated that 80 percent of the occupants of houseboats at surveyed marinas were employed. The number of completed interviews, therefore, is small, and data collected may not provide a representative picture of Virginia houseboat occupants. Nevertheless, file information gained by interviewing these houseboat occupants helps to fill in some details not provided by the survey of marinas. A total of 17 occupancy surveys were completed. Houseboat oc- cupant interviews were completed in tile counties or independent cities of Gloucester (three interviews), Middlesex (three), Norfolk (six), Northumberland (one), Prince William (one), Suffolk (one), and Virginia Beach (two). Sixteen of the seventeen respondents had spent the previous night on board their boats, and the average number of people spending the night per boat was 1.8 (illinimum = 1; maximum = 4). The boats oil which respondents live average 44 feet in length and have an average of four berths. About three-quarters of those surveyed use their boat as their primary residence, and they spend almost every night during the year oil their boats. One quarter of those interviewed spend between 180 and 265 nights on their boats. Most of those interviewed were employed (82 percent). Approximately a third of the boats are moved Out of their moorings less than once a nionth, and none of the respondents use tile boat to travel to a place of employment. All of the respondents' boats had food preparation equipment and 82 percent had showers; 82 percent also had installed toilets. Of those boats with installed toilets, half of them did not have any MSD. For the half with MSDs, equal numbers had Type I and Type 11 and a slightly higher number had Type 111. Five of tile respondents had portable toilets that were emptied at an onshore bathroorn or onshore duinp station. In response to a separate question, ten boats were reported to have sewage holding tanks. Of these, pumpout fre- quency included twice a week (one boat), once a week (two). twice a month (one), once a month (one), three or four times a year (one), two or three times a year (two), and once a year (two). Results or the Study: Additional Comments It is instructive to examine the locations of Virginia marinas (Figure 3) ill reference to tile Virginia localities survey conducted by the Water Centel- (see "Local Concerns and Ap- proaches") on existing and proposed houseboat regulations. Prince William County is tile only county identified by the houseboat survey as potentially having houseboats that also enforces some type of restrictions oil houseboats. Pulaski County and Hopewell indicated that some local restrictions apRly to houseboats, and several other local ities'(Ca pe Charles, Rocky Mount, Prince George County, Bath County, Central Shenandoah Planning District Commission, Chesapeake, and Bedford County) indicated tile issue of houseboats has at least been discussed. Several of these localities with plans for regu@lating houseboats or with discussions underway do not currently have houseboats or marinas but indicated that problems elsewhere in the state motivated local concern. The results of tile houseboat occupancy interviews support results from an earlier telephone survey conducted by the VDH and observations made by J. Arnson of the EPA that boats with installed toilets are not being equipped with MSDs. Half of tile boats in the houseboat oc- cupancy survey with installed toil6ts did not have MSDs. According to the VDH's telephone survey, 20 percent of the 1,089 boats sold in Virginia in 1988 with installed toilets did not have MSDs. Such information could be used to justify the Chesapeake Bay Commission's recommendation that a federal inspection program of new boat construction is needed to enforce compliance with current MSD standards. State Concerns and Approaches Concerns There is little hard evidence to indicate that houseboat sewage is a major cause of water pollution. A telephone survey of 21 states conducted by the Water Center did not turn up information about any systematic studies of problems caused by houseboat sewage dis- posal; however, a number of state contacts indicated that water quality concerns had _10- prompted development of state regulations. A few states are currently working on studies. For example, Connecticut's Department of Environmental Protection is collecting water quality data for certain harbors where it is suspected that sewage disposal is a problem. In the District of Columbia, negotiations are underway with the Occoquan Laboratory to conduct a study determining the amounts of sewage generated by residential boats. Other "evidence" of water quality an(] public health problems takes tile form of anecdotes from various state contacts. Maryland's floating home regulations were developed in re- sponse to water quality concerns, and New Hampshire's no-discharge policy was prompted by nutrient and esthetics problems related to sewage disposal oil freshwater lakes. Michi- gan began looking at boat sewage disposal problems about 30 years ago and found that fecal coliform levels in marinas were higher than elsewhere and that "slugs" of cohlorni-conia- minated water were coming out from marina basins. New Jersey has had problems with shellfish beds being closed or declared to be seasonal, and the state felt that boat sewage was one of a variety of pollutant sources. The District of Columbia is @oncenecl about tile proliferation of floating houses and their potential for pollution and also is concerned about what happens to boat sewage when the District's mobile punipout station is iced in. The main concern in Virginia is the effect of boat sewage Iha( finds its way to the Chesa- peake Bay, either through direct discharge into the Bay or discharge into the rivers and streanns that feed it. The results of the Virginia Department of Health's houseboat survey (see "Houseboat Residency Study") indicate that there is some cause for concern about houseboat sewage, at least in the Chesapeake Bay watershed. Six of the localities that were identified as having significant numbers of potential houseboats (all within the Chesapeake Bay watershed) had one or more marinas lacking pumpout facilities for the disposal of sewage. In two Bay localities, the majority of surveyed marinas did not have pumpouts. Interviews with 17 houseboat occupants conducted by VDH personnel indicated that half tile respondents' boats with installeo toilets had no marine sanitation devices (MSDs). Although this may not be representative of all boats in use as houseboats ill Virginia, a VDH telephone survey of boat dealers suggested that 20 percent of boats sold with installed toilets have no MSD. Further, J. Arnson of the EPA has suggested that most of tile estimated 50,000 boats in the Bay that have installed toilets directly discharge their wastes into the water even if they have holding tanks, supporting the conclusion that these boats are a source of sewage pollution. Virginia localities, while not expressing concern about current problerns with houseboat sewage (see "Local Concerns and Approaches") worry that there may be prob- lems in the future and want to be prepared. States' Approaches to Regulating Houseboat Sanitation Data on statutes and regulations concerning houseboat sewage in other states were ob- tained in three ways. First, an electronic search of state statutes, using WESTLAW, a service of West Publishing Company, was conducted by tile Water Center. Searches were con- ducted using a combination of two sets of terms: (a) houseboat, house'boat, resident vessel, liveaboard, or floating home and (b) sewage, sanitation, toilet, waste, or marine sanitation device. Second, statutes of states not included in WESTLAW databases, but felt to be of in- terest because of the presence of sizeable bodies of water in the state, were searched ma- nu*ally in tile Washington and Lee University Law Library. Third, telephone contacts ill 21 states were asked about state statutes and regulations. Definition of Houseboats: How a houseboat is defined is critical to its regulation, and states have developed a variety of rneans of defining and naming houseboats. In state statutes, the most commonly used names for this type of vessel are houseboat, iiveaboard vessel, resi- dent vessel, and floating horne. In the following discussion, houseboat will be used as the general term for the kind of vessel meant by these names. No matter what name is given to these vessels, the means of identifying them and thus opening them to regulation fall into four basic categories: 1. Making it clear in statutes that houseboats are vessels, boals, or watercraft; 2. Defining a houseboat in terms of residency time or some residential structural aspect of the vessel; 3. Including floating structures that are LJ9ed for commercial purposes under the heading of houseboat; and 4. Including any structure that floats and is moored, but iliat is not used as transportation, under the heading of houseboat. States use these categories eitlier singly or in combination. Typical wording of the first kind of statute is found in Missouri's Code: "Boats, any vessel or watercraft moved by oars, paddles. sails, or other power mechanism, inboard or out- board, or any other vessel or structure floating upon the water whether or [lot capable of self-locomotion, including, but not limited to houseboats, barges and similar floating ob- jects;. . ." An example of the second category is found in Delaware's draft marina regulations: "Resident Vessel. A vessel occupied by people and docked or moored at an anchorage, marina or other boat docking facility for a period exceeding a total of two weeks in a single year." Another example frorn this category, but using the structural aspect as the identifying feature, can be found in New Hampshire's statutes: "Houseboat means any ship, boat, raft, float, catamaran or marine craft of any description upon or within which are located sleeping and toilet facilities,'regar@d less of whether such facilities are of a permanent or temporary nature." Typical wording of the third category is found in the definition of liveaboard vessel given in Delaware's Code: "Live-aboard vessel shall mean: a) A vessel us6'd principally as a resi- dence; b) A vessel used as a place orbusiness, professional or other commercial enterprise ... ; or c) any other floating structure used for the purposes stated under paragraph a. or b. of this subdivision." Maryland regulations contain a definition that combines the third and fourth categories: "Floating home means any vessel, whether self-propelled or not, which is: (a) Used, desig- nated, or occupied as a permanent dwelling unit, place of business, or for any private or social club, including a structure constructed upon a barge primarily immobile and out of navigation or any structure which functions substantially as a land structure while the sarne is moored or docked within Maryland; . . Once a state has defined what a houseboat is, it has a variety of means at its disposal for regulation of sewage. State Statutes, Regulations, and Policies for Control of Houseboat Sanitation: In some states, regulation of houseboat sewage occurs entirely through federal MSD regulations. Other states regulate non-navigable waters through state-level agencies or give regulatory powers to localities, with only oversight occurring at the state-agency level. In "no-discharge" states, specific houseboat rules are really not necessary, although rules for floating resi- dences (which have no means of self-propulsion and thus may escape regulations applying 2- to watercraft) may be. Localities use a variety of means to regulate houseboats (see "Local Concerns and Approaches") Regulation by state level agencies may take a number of forills: 1. A state may declare statutorily that a hotiseboat is a vessel or watercraft an(] subject to vessel or watercraft regulations; 2. A state may have special statutes or regulations for regulaling houseboat sewage: or 3. A state may regulate houseboat sewage only oil certain waters. It should also be noted that some state contacts indicated that the state does regulate houseboats in practice, but not by statute or promuigated regulation. Massachusetts is an example of a state that [)(Its h0L15eb0alS in the same category as other watercraft for regulation of sewage discharge. Under Massachusetts General Laws, the Di- vision of Water Pollution Control is directed, given certain restrictions, to "adopt, arnend, or repeal ... regulations to control or prevent the discharge of sewage. garbage or other waste material from watercraft of any type, including houseboats." Although Ohio does not specifically call houseboats watercraft, their statutes do specifically prohibit the discharging from watercraft into water the kinds of wastes that houseboat dwel- lers would generate: "kitchen wastes, laundry wastes, slop sink drainage, or other house- hold wastes." The Ohio contact stated that this statute applies to houseboats; even though the statute does not state that houseboa(s are considered watercraft, the practice is to treat them as watercraft. The second category, special skatutes or regulations for houseboat sewage. call be found in Maryland and Delaware. Delaware's draft marina regulations propose that each resident vessel (see above for definition) in a slip be provided with a slipside pumpout facility and that resident vessels be required to use these facilities. According 10 the Maryland contact, Maryland regulates floating homes as it would any residence. Floating homes (see above for definition) must have permanent hookups to an onshore septic system or sewer line. Texas, in addition to stating that houseboats are included under the heading of boats, is in- cluded in tile third category. It requires houseboats operating oil certain bodies of water to be equipped with an approved non-flow-through marine sanitation device. How well do these approaches work? Of tile seven states that answered questions con- cerning the effectiveness of their enforcement of tile statutes and regulations, only two, Mi- chigan and New Hampshire, reported rather strict penalties. Wisconsin appears to have an enforcement program in place. Tile other states appear to have minimal enforcement: the District of Columbia reported that enforcement of their no-discharge law was very difficult, Maryland has no set program for enforcement, and contacts in Ohio and Texas could not remember anyone ever having been cited for a violation. Virginia's Laws and Regulations: Virginia currently regulates boat sewage through the VWCB's "Regulation No. 5," which requires that boats in shellfish growing areas have sew- age retention devices, and the VDH's "Sanitary Regulations for Marinas and Boat Moorings." VDH's regulations require all marinas and boat moorings to provide onshore toilet facilities, sewage dump stations, and boat sewage holding tank pumpout facilities for the use of boaters. A boat is defined by the VDH regulations to include vessels or structures "floating on water in [he Commonwealth of Virginia, whether or not capable of _13- self-locomolion" and specifically states that houseboats are included. The VDH regulations do not require, however, that boaters use these facilities. Future Approaches: One of tile newer approaches to handling file problem of houseboat sewage is to regulate houseboats, especially the floating home variety, as structures rather than as vessels. This approach could be used in Virginia, as it appears that nothing in tile Uniform Statewide Building Code requires that buildings and structures be oil land. In ad- clition, � 10 of the Rivers and Harbors Act of 1899 prohibits construction of certain structures in or affecting navigable waters without obtaining a Corps of Engineers pert-nit. The regula- tion that defines "structure" [33 CFR � 322, 2(b)] includes any "permarlently moored floating vessel," and a 1983 case ruled that houseboats only beconle structures requiring �10 per- mits if they are permanently moored [United States v. Boyden, 696 F.2d 685 (9th Cir. 198301. The San Francisco Corps office has developed criteria for determining when a vessel is permanently moored and needs a �10 permit, including dUration of mooring, how it is at- tached to tile mooring, type of utility hookups (temporary or heavy-duty, permanent or semi-permanent), type of grounding, whether its use is typical of strUctures on shore (such as full-time residences), and whether it lacks self-propulsion. In Connecticut, attempts have been made to pass legislation requiring no-discharge for Ii- veaboards. So far the legislation has not passed, but it appears that it may pass in tile fu- tu re. Local Concerns and Approaches To determine whether Virginia localities regulate or are planning to regulate houseboat sewage disposal, the Water Center sent a letter to 91 planning distrid executive directors, city and county planning directG@rs, and other officials in counties and towns that border large* bodies of water (lakes and reservoirs, coastal areas, and large rivers). The letter explained the purpose of the survey and asked whether the area had a means of regulating houseboats and for a contact person for more information. A total of 75 replies were received. Of those, only eight localities indicated that they have or are considering regu lations. However, 51 of tile respondents sent names and telephone numbers of contacts, despite indicating that they had no means of regulating houseboat sewage disposal. Contacts for six of tile localities which indicated that they are or are thinking about regulating houseboats were interviewed by Water Center personnel via telephone. Tile concerns and approaches of localities in other states were determined through tele- phone interviews with contacts in various states. The information provided about problems related to houseboat sewage disposal was anecdotal; in some cases, copies of local ordi- nances and regulations were obtained. The information gained from localities in Virginia and in other states shows that localities can approach regulation of houseboat sewage disposal in a variety of ways. One alternative skirts the issue of sewage disposal but effectively controls it by prohibiting the use of houseboats altogether. Such an approach is based on the idea that marinas are a use of land and therefore can be regulated using available land-use planning and zoning ordi- nances. Approaches vary from total prohibition to a limit on the number or percentage of slips at a marina that can be used by houseboats. The other most common alternative seems to be to allow the use of houseboats but to approach them as structures or resi- dences rather than as watercraft and to use existing requirements for sewer, water, and electrical pert-nits to control sewage disposal, Virginia Localities The six Virginia locality contacts interviewed were asked a series of questions about houseboat use, problems caused by houseboat sewage disposal, and means of regulating sewage disposal from houseboats. Although all six had responded affirmatively to tile ori- ginal query about having a means of regulating houseboat sewage disposal, telephone in- terviews revealed that only three of tile respondents actually do [lave local regulations, and one of those currently has no marinas or houseboats to regulate. The responses to questions about water quality and public health concerns were instructive. Of the six localities contacted, none said they had any water quality or public health prob- lerns caused by houseboat sewage disposal, and two (Bath County and the Central Shen- andoah Planning District Commission) do not even [lave marinas on tile major lake ill their area, Lake Moomaw. Nevertheless, they are concerned about the possibilities of problems in the future and want to plan ahead to be sure that houseboat sewage disposal is something they will be able to regulate before it becomes a problem. Likewise. the localities that re- sponded affirm iatively to the "means of regulating" question also indicated concern about public health and water quality problems, although they had no evidence of any specific. problems. The Hopewell contact mentioned that pollution frorn Allied Chemical overshad- ows any problems that might be caused by boat sewage disposal. Although all six localities responded negatively to a question that asked specifically about disposal problems affecting the use of water for a public drinking water supply, for swimming, for sport or commercial fishing, and other uses, they also indicated that the lack of current problems did not make them believe there would be no future problems. As the Prince William County contact said, "Dumping raw sewage is not a desirable thing; just because no one has gotten sick yet doesn't mean it won't happen in tile future." The approaches of Virginia localities to regulation of houseboat sewage disposal vary: Special u se permit: In Pulaski 6ounty, a new zoning ordinance requires a special use permit to moor or dock a houseboat. Obtaining the permit requires giving notice to adjacent prop- erty owners, a public hearing, and planning commission approval. Conditional zoning: Rather than try to regulate sewage disposal from houseboats in Prince William County, they are simply prohibited at all new marinas. Conditional zoning provisions allow the health department to lobby tile planning office to impose a condition prohibiting houseboats when new marinas are planned. The General Assembly granted Prince William County and other northern Virginian counties tile authority to use conditional zoning pri- marily to help control development in tile area, and a side benefit was that it allows prolli- bition of houseboats. Houseboats as structures: In Bath County, although there currently is not a problem with houseboat sewage disposal (Lake Moomaw does not yet have a marina), the contact is confident that existing zoning ordinances and the statewide building codes will allow thern to regulate houseboats as structures and single-family or mulli-farnily dwellings. As such, all permit requirements for water, sewer, and electrical connections would apply to house- boats in the same way that they apply to on-land dwellings. Other Localities Several states, including Connecticut, Maryland, New Jersey, and Wisconsin, reported that some localities simply prohibit houseboats. In Madison, Wisconsin, the prohibition applies to habitation oil boats overnight, which the Wisconsin Department of Natural Resources contact seemed to think would probably not qtand up in court. _15- An ordinance used in Wrightsville Beach, North Carolina. requires the connection of house- boats to public sewers. No overboard discharge is allowed, and floating homes are permit- ted only in commercial marinas. A city ordinance in New Jersey (North Wildwood in Cape May County) differentiates between houseboats that have no means of propelling themselves and other watercraft used as resi- dences. The houseboats with no means of moving are prohibited outright, and other water- craft used for living quarters are restricted to 38 percent of the space ;A a marina. New Hampshire, a state that does not have statewide requirements for purnpout facilities at marinas, does encourage localities to adopt a model zoning ordinance that requires marinas to install both pumpout facilities and comfort stations. In Connecticut, a state statute gives localities file authority to prevent tile anchorage of houseboats near beaches, boathouses, or residences if five citizens that live adjacent to tile facility in question apply to do so. Texas localities may issue their own regulations for controlling boat discharges as long as the regulations are at least as strict as state regulations. Houston requires boats to have city decals, and some localities have taken over the job of certifying boat MSDs. A boat owner with proof of local certification can receive state certification to operate oil Texas's specially designated lakes by paying an additional $2 fee. In the state of Washington, [lie Department of Social and Health Services has recently issued a model ordinance for liveaboards and a report that describes technical solutions to house- boat sewage disposal problems. Tile model ordinance requires slipside sewage collection, transportation, treatment, and disposal facilities for houseboats at both private and public marinas. Recommendations Houseboat Definition Introduction: There are two kinds of "houseboats" that are a cause for concern to state and local governments. One is a boat that people live oil for sorne extended period of time and that is capable of self-propulsion. Tile other is a floating home that is usually incapable of self-propulsion and rarely moves from its moorings. Floating homes, as well as lived-on boats, should be of concern to the Commonwealth. Contacts in the District of Columbia, New Hampshire, Texas, and Prince William County, Virginia, noted that people use both floating homes and lived-on boats as a rneans of avoiding high taxes and property or house prices. Floating homes can be quite large, conventional one- to three-slory houses, according to contacts in the District of Columbia and Prince William County, and in several states are regulated differently from lived-on boats. Depending on the potential for sewage discharge from floa(ing residences in Virginia, the state should consider having either two definitions that distinguish between lived-on boats and floating homes or a definition that includes both, as in the definition below. Definition: floating residence - any ship, boat, catamaran, barge, platform, or marine craft of any description, or any building or structure (as defined in � 36-97 of the Uniform State- wide Building Code), regardless of motive power, in or on bodies of water in the Common- wealth of Virginia, upon or within which are located sleeping and toilet facilities, regardless -16- of whether such facilities are of a permanent or temporary nature, and which is used as a habitation for more than 30 consecutive days. The following definition should be included or referenced in any section of the Virginia Code which defines floating residences: habitation - a place of residence, either permanent or temporary. Comment: The word houseboat has been replaced with file word "floating residence" be- cause it is more descriptive and avoids conjuring up stereotypical images of houseboats as small, cheap dwellings on floats. The definition is based oil a New Hampshire law (N.H. Rev. Stat. Ann. �270-A:1-270-A:7, 1987 & Supp. 1988). These partial definitions havP. been added so that lhe reader does not have to refer to the Code: building - a combination of any materials, whether portable or fixed, having a roof to form a structure for the use or occupancy by persons, or property ...... [Va. Code Ann. �36-97 (Supp. 1989)]. structure - an assembly of materials forming a construction for occupancy or use. [Va. Code Ann. �36-97 (Supp. 1989)]. Recommendations for Actions at the State Level In 1987 federal law was amended to permit states to' assurne regulatory responsibility for the use of MSDs on houseboats ["a vessel which, for a period of time determined by the State in which the vessel is located, is used primarily as a residence and is not used primarily as @a means of transportatioa"-P.L@ 100-4, �311, 101 Stat. 42 (1987)]. States may adopt or en- force a statute or regulation on the design, manufacture, installation, or use of any MSD on a houseboat as long as these are more stringent than federal standards. The following rec- ommendations present a number of issues for Virginia to consider in-the development of a state program for controlling houseboat wastes. 1. The state should adopt a definition of houseboats and regulate IVISI)s aboard them pursuant to � 311 of the Clean Water Act, but first the state needs to determine whether it needs different regulatory controls for movable and nonmovable houseboats based on the types of houseboats used In the state. Comments: Several states have decided to make regulatory distinctions between mov- able houseboats that are used for short-term habitation and houseboats that rarely move and are used as permanent residences. A model ordinance developed by Washington differentiates between cruising and noncruising liveaboard vessels and has stricter regulations for the noncruising vessels. California calls a residential vessel that is not used for active navigation a "houseboat" and calls a boat that is used for navigation but also is moored for an extended period of time a "five-aboard boat." Regulations under consideration in New Jersey would apply special requirements at new marinas servicing "live-aboard vessels," which are defined to include only vessels used principally as residences for more than seven consecutive clays and used for transportation only as a secondary or subsidiary use. There is a recommendation included below in Future Re- search and Study that suggests the state should make a new study of houseboat occu- pants in order to determine hc;'w much of a problem these two types of floating residences are in Virginia. I -17- 2. The VWCB and VDH should designate that wastewater discharges iot be allowed In in- land waters and coastal waters of the Chesapeake Bay. Comment: The state's long efforts to get a no-clischarge petition approved by the EPA are stymied and may have to begin again at the stage of surveying marinas for pumpout facility capacity in the proposed no-discharge area. The EPA has indicated to the VDH that the ten-year-old petition information may no longer be up-to-date. All effort to up- date that petition may be superceded, however, by the state's participation ill (Ile 1987 Chesapeake Bay Agreement to work toward eliminating pollutant discharges from rec- reational boats in the Bay area. The Chesapeake Bay Commission noted in a resolution dated September 8, 1989, that designation of the entire Chesapeake Bay and its tribu- taries as a no-discharge zone would ultimately be the way to achieve this objective of the Bay agreement. Regardless of the petition's status. state officials need to catalog where existing pumpout facilities are located and where their ultimate point of disposal is, determine whether greater treatment capacity is needed to accommodate the treat- ment of boat sewage, and identify which localities lack adequate facilities. The state should target identified localities to receive state support for construction loans. This recommendation places the effort to assume state control over MSIDs on floating resi- dences in the context of the VDH's larger effort to follow stale and federal guidelines for marine pollution control. 3. The state should consider a total ban on floating residences in very sensitive areas. Comment: Policing MSD discharges in sensitive areas will be difficult and probably in- adequate if funding is limited. In areas where protecting water quality is a very high priority and the waters are especially sensitive to boat wastes because of such cliarac- teristics as poor flushing or high nutrient loadings from other pollution sources, an out- right ban on floating residences may be the most efficient method of control in terms of time and costs. In addition@to state desig Ination of areas where floating residences may not moor, the state can effectively do the same thing by granting authority for conditional zoning to selected localities. Prince William County is all example where conditional zoning procedures are currently used to prohibit liveaboards at 'new marinas. 4. The state should require that floating residences meet state building code requirements for hookups to water, sewer, and electrical utilities, regulate floating residences as structures rather than as vessels, and allow localities to tax such structures as if they were improvements on real estate. Comment: It appears that nothing in Virginia's Uniform Statewide Building Code re- quires that buildings and structures be on land. 5. The VDH should require all marinas that provide docking services for floating resi- dences to provide dockside services for wastewater and sewage disposal along with other utilities. Comment: Provision of adequate sewage disposal facilities may decrease overboard dumping as well as facilitate designation of sensitive areas as no-discharge zones. It is not practical, however, to use pumpout facilities if houseboats that rarely move from their moorings have to travel to use thern, and thus dockside connections for utilities should be required in order to discourage noncompliance with pumpout requirements. 6. The VDH should amend its regulations to establish the maximum fee that a marina can charge boaters for using pumpout facilitiVs constructed with public funds. Comment: The cost and the inconvenience associated with using pumpout facilities are thought to be important deterrents to obtaining greater voluntary cooperation frorn the boating public. 7. The VDH and the VWCB may find it useful to coordinate pollution control efforts related to IVISI)s on floating residences, as they do in other sewage sanitation matters. For in- stance, depending on other elements in the state's approach to assuming control of IVISI)s aboard houseboats, the VWCB may choose to require VPDES permits for any floating residences with Type I or 11 IVISI)s as point source discharges. Comment: The VWCB issues VPDES permits in Virginia but excludes discharges of sewage from vessels frorn the list Of Pollutants requiring discharge permits, just as the national Clean Water Act excludes in � 502 "sewage from vessels" covered by �312 and its IVISD requirements from the definition of pollutant, It floating residences treat their sewage with Type I or il MSDs, then the VWCB may have an interest in regulating the discharge as a point source pollutant or bringing enforcement actions to force compli- ance with any requirements for holding tanks or dockside. hookups. New Jersey also exempts vessel sewage from its discharge permit program (NJPDES) but uses two phrases to except liveaboards from this exemption: "incidental to the normal operation of a vessel" and "other than operating as a means of transportation," Thus, sewage disposal can be regulated on a boat that is not operating normally or is not being used for transportation. Moored houseboats without sewage connections are referred for enforcement and investigated. Recommendations for Actions at the Local Level Although the 1987 revisio 'ns to the Clean Water Act.aulhorize the state to assume regulation and enforcement of MSD requirlements for houseboats, the VDH may want to consider an approach that minimizes the state's role and maximizes the role of localities. Encouraging localities to regulate floating residences within state guidelines if they perceive houseboat discharges to be potential or actual problems would require less st&t-up time than getting an entire program passed by the General Assembly. It would also offer the advantage of letting localities with a greater interest in controlling the problem be models for any future legislation that the state would want to consider. 1. The VDH shouNJ develop a model ordinance for regulation of s@ewage disposal from floating residences and encourage targeted areas at risk for pollution from floating re- sidences to adopt the provisions of the ordinance. Comment: The VDH may want to delegate primary responsibility for control of house- boat pollution to localities, as they already oversee such related land-use issues as housing density and building code inspections. This approach would be more "educa- tory" than regulatory but could be very effective and cost efficient if state support and advice were targeted toward the local officials of areas at risk. Washington's model or- dinance could be helpful in this effort (see Washington State Department of Social and Health Services 1989b), since it distinguishes between liveaboard vessels that cruise and those that are not designed for operating in open waters. Graywater is not regulated in Washington's model provisipns, but sewage from cruising vessels must go to holding tanks and noncruising vessels must be connected to approved shoreside sewers. Washington's model ordinance was patterned after ordinances in Berkeley and Marin County, California, and Dade County, Florida. I 19- 2. The state should authorize local governments to tax floating residences as structures and not as vessels. Fifty percent of the revenue should go into a trust fund to provide dockside water, sewer, and electrical utilities. Comment: In file Water Center's survey of other states' regulations for houseboats. avoidance of property taxes was cited as one reason for living on houseboats in Wash- ington, DC. Sorne Maryland localities concerned about the use of floating residences eroding the local tax base have supported the development of state regulations and prohibitions. A real estate tax system for houseboats could act as a disincentive and result in fewer people choosing to live oil ihern. 3. The state should encourage localities with high concentrations of floating residences to regulate their use or density with authorities available to local jurisdictions. Comment: Pulaski County, for instance, has a new zoning ordinance for tile Claytor Lake area that requires a special use permit to moor or dock a houseboat: obtaining the per- mit requires notice to adjacent property owners, a public hearing, and planning corn- mission approval. Although there are only a few areas in the state that have been granted authority by tile General Assembly to use conditional zoning, Prince William County has the authority and uses the process to prohibit liveaboards at new marinas. When a developer applies for rezoning, tile health department lobbies tile planning de- partment and a condition is imposed prohibiting liveaboard boats. A New Jersey rnuni- cipality passed an ordinance that distinguishes between houseboats (vessels not designed primarily for dwelling) and floating homes (vessels used as permanent dwell- ing units) and prohibited the latter. The ordinance was upheld by a federal court of ap- peals [see Bass River Associates v. Bass River Township, 743 F.2d 159 (3rd Cir. 1984)], and the court took note of another local ordinance requiring a minimum of 3.2 acres per homesite. Creative use of 7A 'oning controls in areas with potential or actual problems has the advantage of provoking lo@al concerns if there are local consequences from non- compliance by owners of floating residences. Enforcement Issues 1. State boating groups and marina owners should be involved In the process of develop- ing regulations and statutes concerning houseboat sewage. Comments: It is clear from tile recent history of MSD regulations that boaters do not willingly comply with regulations regarding boat sewage. One article in a boaters' trade magazine (Weinschenk 1987) noted that federal MSD requirernents were based on good intentions but have not worked and have made bad sanitati.on socially acceptable. If it is true that unpopular laws "make criminals out of law abiding citizens," then regulatory efforts need to include public participation efforts to learn the views of tile regulated public. Since the state and federal governments do not have sufficient funds to use en- forcement as the sole means of encouraging compliance, stimulating voluntary compli- ance should be a priority. One way to do this is to carry on a dialogue with tile people most affected by the regulations. These people should be educated in tile need for re- gulation and should be given the opportunity to provide input that will be used in tile development of statutes and regulations. 2. A Memorandum of Understanding should be developed between Virginia and the U.S. Coast Guard so that the state can share with the federal government the enforcement of � 311 and 312 of the federal Clean Water Act (CWA). -20- Comment: With shrinking Coast Guard budgets and limited enforcement funding, the success of shared responsibility for enforcement of federal MSD requirements on all boats with toilets and enforcement of state controls on discharges frorn floating resi- dences would depend on careful selection of areas targeted for enforcement. In a spe- cial Issues and Actions paper on boat pumpout facilities, the Chesapeake Bay Commission (1989) notes that selective enforcement could play all important role in helping boaters to realize that "it is less expensive to install an MSID than to get caught without one, if the chance of getting caught is reasonably high." Since the state has not opted in the past to share enforcement responsibilities with the Coast Guard, irnple- mentation of this recommendation would require a financial commitment by the General Assembly to enforce rules addressing water qUality degradation by all boats with toilets., including floating residences. 3. The state should require that seals be placed over wastewater discharge outlets on all movable and nonmovable floating residences docked or tied up at a marina or anchored within a mile of a marina. A sticker should be placed on the hull of vessels showing that the vessel has been inspected for a seal within the last year. 4. The state should authorize marinas to install seals for an establ'oshed fee to be paid by the vessel owner. 5. The state should require that movable floating residences be inspected by marinas for seals on wastewater discharge outlets before docking at a marina overnight. Failure to make such an inspection by the marina would constitute a misdemeanor. 6. The state's regulations should provide that if the seal on any wastewater discharge outlet is broken, there is a rebuttable presumption that an iliegal discharge has been made and the vessel owner is guilty of a misdemeanor. 7. The state should make it a misdemeanor for marinas to launch, service, or sell either movable or nonmovable floating residences not equipped with seals oil wastewater discharge outlets. Comment: The five recommendations above are based on the idea that requiring seals on discharge outlets is the best way to discourage illegal discharges and to rninirnize patrolling of sensitive areas. Some states have used conservation wardens to inspect boats at marinas; others suggest that local police or marine patrol officers be involved in inspection and enforcement. Such enforcement efforts are expensive, however, and it may be that the incentives provided by marina fee collection would encourage the marinas to advocate for compliance and would provide a source of revenue to support facility construction. Another possibility for enforcement is to have boating organiza- tions develop methods for inspection and for collection. "Ownership" of the enforce- ment system by the regulated community could enhance compliance and encourage participation in the inspection program. Future Research and Study This report serves to identify some of the gaps in available information about houseboat use in Virginia, the potential for overboard sewage disposal in the state, and degradation of wa- ter quality attributable to such sewage disposal. The following recommendat ions, however, point to the need for future study. 1. The state should support (he Identification of areas particularly sensitive to discharges from MSDs as part of Virginia's next biennial water quality Inventory. -21- Comment: This recommendation follows one made by tile Chesapeake Bay Commission (1989) in an Issues and Actions paper on boat pumpout facilities. Resources for pollution abatement need to go to activities that pose the greatest threat to water quality degra- clation and to areas where the potential for harni is large. Each of tile Bay states is al- ready committed to an inventory of water quality every two years by �305(b) of file Water Quality Act. Willi added resources, the VWCB could make the biennial assessment the primary vehicle for targeting areas at risk from MSD discharges and provide the state with a way to efficiently identify localities that need special support, for instance, in im- plerrienting a model ordinance to control houseboat sewage discharge or constructing additional facilities. 2. The VDH should conduct a new survey on houseboat occupancy that will describe tile duration of occupancy aboard floating residences in the state and the potential for ov- erboard discharge of vessel sewage. Comment: The number of interviews completed in the 1989 VDH survey was sil-lall, arld thus the data may not provide a representative picture of the state's population of houseboat users. The VDH could contract out the job of designing and conducting a statistically sound survey flial. would distinguish between movable and norinlovable floating residences, determine tile average duration of extended occupancy on each type of boat, describe the disposal and treatment systems currently in use oil both, and as- certain the potential for overboard discharges. Alternatively, the VDH could use substantially the same survey but conduct interviews during evening hours and oil weekends for a better response rate. Suggestions for ex- panding file existing survey include questions on (1) what type of houseboats are in use, i.e., movable or nonmovable floating residences, (2) whether the houseboat has to be moved to pump out wastes, (3) whether boaters have access to direct sewage hookups .or clockside holding tanks instead of pumpout facilities, (4) tile tank capacity of tile boats' k - MSDs, (5) whether graywater is pumped through the systern or pumped overboard, and (6) the average number of consecutive nights per year that tile boat is occupied. It would also be useful to list the options that current technology makes a *vailable for treatment and disposal of boat wastes and survey the respondents for their preferred solutions. 3. The VDH should conduct a new survey of marinas that will provide information on the availability of sewage disposal and treatment facilities at or near marinas. Comment: Such a survey should be designed to determine whether hook-up of floating residences to public sewer lines or onshore septic systems is a feasible alternative for disposal of sewage from floating residences. Further, tile survey should identify areas where onshore sewage treatment capacity to handle waste from pumpout facilities is inadequate. The state could then consider providing funds to upgrade existing treatment facilities. Funding priority should be consistent with the state's interest in Chesapeake Bay waters. -22- References Bolton, Y., M. Gadzik, and R.R. Towbin. 1989. Brief of Department of Environmental Pro- lection, Coastal Resources Management Division, in file matter of Connecticut v. Chick et al. Chesapeake Bay Commission. 1989. Boat pump-out facilities for the Chesapeal(e Bay: A review and recommendations. Annapolis, MD. Clark, B.D. 1967a. Houseboat wastes: Methods for collection and treatment. NTIS PB-206 439. Corvallis OR: U.S. Department of Interior, Federal Water Pollution Control Adrninis- tration, Pacifc Northwest Water Laboratory. Clark, B.D. 1967b. Houseboat waste characteristics and treatment. NTIS PB208 438. Cor- vallis,OR: U.S. Department of Interior, Federal Water Pollution Control Administration, Pacific Northwest Water Laboratory. New Jersey Department of Environmental Protection, Division of Coastal Resources. 1989a. The availability of and demand for sanitarysewage handling facilities on New Jersey's coastal waters: A report to the state legislature as required by P.L. 1988 c. 117-the Marine Sewage Treatment Act. Trenton, NJ. New Jersey Department of Environmental Protection, Division of Coastal Resources. 1989b. The availability of and demand for sanitary sewage handling facilities 017 New Jersey's coastal waters: Addendum and recommendations. Trenton, NJ. Prohibition of floating homes upheld. 1984, Zoning and Planning Law Report 7 (11):87. San Francisco Bay Conservatio@ and Development Commission. 1985. Houseboats and Ii- veaboard boats. San Francisco, CA. Schmidt, E.A. 1971. The maligned-aligned houseboats. Oregon S tate Board of Health. Or- egon Health Bulletin 49(4):1-12. Seabloom, R.W., G. Plews, and F. Cox. 1989. Puget Sound marina & boater study: Draft. Olympia, WA: Washington State Department of Social and Health Services, Shellfish Section. Washington State Department of Social and Health Services, Shellfish Section. 1989a. Miti- gation measures to control water pollution from houseboats in marinas. Puget Sound Water Quality Authority Task MB-2. Olympia, WA. Washington State Department of Social and Health Services, Shellfish Section. 1989b. Mo- de/ ordinance establishing rules & regulations for sewage disposal from vessels with livea- boards at marinas. Olympia, WA. Weinschenk, C. 1987. Clean water: Marine sanitation 1987. Boating Industry June 1987:40-43. -23- Table 1. Calculated indices of the potential abundance of houseboats in the 16 localities with VDH houseboat survey data. a. b. C. Localit@' Marinas Sun-eved Shps Surveved Boats Surveved Total I'vlarinas Total Shps in Locality Total Slips in Locality 03 Accomack 1.6 8.5 @.O Alexandn'a 50.0 Bedford 16.7 -).g Chesterfield 100.0 100.0 1.1 Fairfax '171.4 88.0 25.4 Gloucester 37.5 100.0 433.6 Hampton 16.7 38.0 17.33 Henfico 33.3 67.0 4.1 Lancaster 13.7 44.8 22.8 Mathews 9 0.6 0.3 Middlesex 35-3 71.0 42.6 N.- o rfo Ik 55.3 74.9 24.7 Northumberland 7.5 23.1 1.8 Prince William 7.1 11.1 0.1 Suffolk 2 5. 0 20.8 13.0 Vir2inia Beach 42.1 40.6 23.7 a. Propor-tions of surveyed marinas to total maninas (per locality). b. Proportions of surveyed slips to total slips (per locality). c. Proportions of surveyed boats with shower, food preparation, and toUet facilities to total slips (per locality). Table 2. Indicators of houseboat use for six Virginia localities identified as potential "problem areas" in the state. # Boats # Boats Boats Used # Boats with 9 Boats with Boats with Occupied with Berth, as Primanr Water Electric Sewer Localit-v 2@ 31 Davs Galley, Toilet Resid6rice Colulection Connection Connection Fairfax @4 -2 13 4 --- 204 0 *Gloucester 270 316 35 272 290 0 *Lancaster 4 199 0 0 78 0 *Middlesex 230 1.111 1) 0 338 0 *Norfolk 5 5 819 67 252 280 5 *Virginia Beach 111 517 150 479 0 *Localities that have one or more marinas -with no pumpout fa c 1 hil e S. Numbers of Registered Motorboats Size Class 26-40 Feet 11 (Total for All States*) 340 - 330 - 320 - 310 - 300 - 0 to@ 290 - -6 o 280 - Z 270 260 250 240 230 220 1980 1981 1982 1983 1984 .1985 1986 1987 1988 Year 'including CC. Arnerican Samoa, Gjam. N. Marianas, P@jerto Pico, and Virgin Islands Source: Data Froin Office of Boating, Public. an(] Consuillei Affairs. U.S. Coast Guard. Figure 1. Numbers of registered 26'-40' motorboats in the United States. Numbers of Registered Motorboats S:ze Class 26 -40 Feet (For Selected States) 15 - 14 - 13 12 11 10 9 0 8 W 0 .C= 7 E z 6 4 3 2 1 X 0 1980 1981 1982 1983 1984 1985 1986 Year V IVID + NJ iS D E 0 CT 0 NC x DC OrVA Source: Data From Office of Boating, Public. and Consumer Affairs. U.S. Coast Guard. -Figure 2. Numbers of registered 26'-40' motorboats in selected states. Counties and Independent Cities with Marinas 10 M (and other places where boats are moored) :3@m C\j 45@ Stafford Marinas 1 Accomack 26. Louisa 2. Alexandria 27. Mathews 46. Suffolk 00 3. Bedford 28. Mecklenburg 47. Surry Houseboat Survey Data 4. Brunswick 29. Middlesex 48. Virginia Beach 0-(D 5. Caroline County 30. New Kent 49. Washington Occupant Interview Data 9@cn 6. Charles City 31. Newport News 50. Westmp,eland 7. Chesapeake 32. Norfolk 51. York 8. Chesterfield 33. Northampton 9. Cumberland 34. Northumberland 10. Dickenson 35, Nottaway 13 36. Pittsylvania 11. Dinwiddie 12. Essex 37. Poquoson 2 13. Fairfax 38. Portsmouth 14. Fluvanna 39. Prince George 40 15. Franklin 40. Prince William 16. Gloucester 41. Pulaski 44 17. Hampton 42. Richmond City C14 19. Hopewell 43. Richmond County 5 12 5 34 1 20. Isle of Wight 44. Spolsylvania 14 21. James City 42 24 22. King George 25 23. King & Queen 3 29 24. King William 9 7 25. Lancaster 19 1 16 0 33 2 3 7 V 3 41 35 11 3 7 17 10 15 32 - 6 4 48 9 8 7 Figure 3. Distribution in Virginia of counties with marinas, counties with houseboat survey data, and counties 0@ @33 with houseboat occupant interview data. "Marina" here refers both to marinas and to other places where boats are moored in the state. Counties for which houseboat survey data are available are stippled; counties with'both houseboat survey data and houseboat occupancy data are blackened.