[From the U.S. Government Printing Office, www.gpo.gov]



                                                                          FY1992 FINALPRODUCT Task10
                                                                                        No Discharge Zone














                      /R' eport on the Potential Establishment of No Discharge Zones

                                              In Virginia's Coastal Waters




                                      Virginia Department of Environmental Quality


                                                               1994























                    This report was funded, in part, by the Dept. of Environmental Quality's Coastal Resources Management
                                                          -01 of the National Oceanic and Atmospheric Administration,
                    Program through Grant #NA270Z0312
    9
                    Office of Ocean and Coastal Resource Management, under the Coastal Zone Management Act of 1972. as
                    amended. The views expressed herein are those of the authors and do not necessarilv reflect the views of
                    NOAA or any of its subagencies.










                                                        Executive Summary

                        No Discharge Zones (NDZs) are waters of a state that have been designated by both the
                state and the Envirom-nental Protection Agency for the purpose of prohibiting the discharge of
                sewage, including treated sewage, from any boat into those waters. Thus, neither raw sewage nor
                sewage from a flow-through marine sanitation (sewage treatment) device and be discharged into
                an NDZ. The effluent from marine sanitation devices, though partially treated, contains intestinal
                microorganisms, biochemical oxygen demand (BOD), nutrients and toxic pollutants (used in the
                treatment process).

                        Under a grant project funded by the National Oceanic and Atmospheric Administration,
                Virginia state agency staff investigated the feasibility of developing an NDZ program in
                Virginia's coastal waters, based on the identification and designation of rivers, creeks,
                embayments, or portions of these waterbodies, which contain significant or sensitive aquatic
                resources. This effort was designed to provide an ecological basis for targeting candidate NDZ
                sites. Final approval authority for NDZ status rests with the Environmental Protection Agency,
                which reviews all such state applications to ensure that adequate facilities for pumping-out boat
                holding tanks exist and are operational in any designated NDZ area.

                        An earlier effort by the Commonwealth of Virginia in 1979 to have the shellfish growing
                portion of the lower Rappahannock River designated as an NDZ was not approved by the
                Environmental Protection Agency due to opposition by the marina industry and the lack of
                sufficient pump-out facilities as compared to the number and location of mooring facilities and
                the number of recreational boats in the area.


                        In the first phase of the current project, the Virginia Institute of Marine Science researched
                the NDZ programs of other states and digitized into GIS format the geographic/ecological
                information found on the Environmental Sensitivity Index maps of the Virginia Coastal Zone.
                VIMS found that no other NDZ programs in other states were based upon thorough ecological
                assessments of aquatic resources. The digitized data were provided to the Virginia Department
                of Environmental Quality to support the second phase of the project.

                        The second phase of the project was designed to use the digitized geographic/ecological
                information to target where NDZ designation (and possibly other management strategies) would
                be considered to protect identified aquatic resources. A group of state agency representatives was
                convened to act as a steering committee for this initiative. The group met several times,
                discussed the many issues surrounding the establishment of NDZs, and developed criteria for
                determining which types or categories of aquatic resources (as reflected in the ESI data or
                elsewhere) and other factors would enter into the determination of candidate NDZs.

                        The steering committee determined that appropriate criteria, designed to address the
                specific effects of boater sewage effluent, would include the protection of areas and resources
                vulnerable to increased turbidity from nutrient loadings, increased intestinal microorganisms and
                increased toxics. The committee determined that submerged Nuatic vegetation beds are


                                                                   i









                particularly vulnerable to turbidity impacts; oyster beds, clam beds, public beaches and public
                pqLks are particularly vulnerable to the effects of intestinal microorganisms; and fish nursery areas
                (particularly anadromous fish) and state and federal wildlife areas and ecological reserves are
                particularly vulnerable to the impacts of toxic pollutants.

                        The committee also considered other criteria, such as the degree of flushing and the level
                of boating activity in a particular area, but it was determined that such criteria should be used as
                a second tier of evaluation after high value resource areas had been initially identified.

                        Unfortunately, however, the limited staff of the Department of Environmental Quality
                EcoMAPS GIS program were not able to transform the digital information that was provided by
                VIMS into usable map products due to the complexity and uniqueness of the data base structure.
                Thus, the cornerstone information for this project could not be obtained and no funds were spent
                under this portion of the project.

                        In addition, other factors may have likely delayed any positive recommendations for NDZ
                development arising from the current project, even if the GIS data base had been more accessible.
                First, the data contained in the Environmental Sensitivity Index Maps is at least fifteen years old
                and needs to be updated if it is to be used as a basis for a regulatory initiative. In past
                considerations of NDZ designations in Virginia, the marina and boating industries have been
                strong opponents of any such effort; without updated and defensible ecological information, state
                agency representatives have not had grounds for demonstrating a definite need to target particular
                areas for NDZ designation to the marina and boating industry.

                        State agency representatives on the steering committee generally agree that discussions and
                considerations should continue on development of a state NDZ program. The steering committee
                intends to continue looking at the possibilities of NDZ designati   'on and the upgrade of the ESI
                data. Currently, a project is being considered by the Office of Ocean Resources Conservation
                and Assessment and the Office of Ocean and Coastal Resource Management to update the ESI
                maps for the entire Chesapeake Bay and to digitize that information. If successful, this initiative
                could have significant potential for furthering NDZ program considerations as well as other
                aquatic resource management strategies.

                        Efforts to educate the marina industry and the boating community on the values of aquatic
                resources and environmentally sound methods of managing sewage and other boater waste will
                continue in Virginia, primarily as conducted by the Department of Health. In addition, further
                research needs to be conducted regarding the current practices of boat manufacturers and dealers
                and how these industries could be brought along as partners in the effort to make it easy for
                boaters to make the right decision regarding sewage disposal.

                        Reauthorization of the Clean Water Act may affect the capabilities and strategies of states
                in dealing with the management of boater waste. This issue is one of many that deserves strong
                coordination among the Environmental Protection Agency, the National Oceanic and Atmospheric
                Administration and coastal states.



                                                                  ii










             1.    Introduction: Background for Consideration of No Discharge Zones in Virginia

                   Under Section 312 of the Federal Water Pollution Control Act,' the Environmental
             Protection Agency has promulgated standards' aimed at preventing the discharge of untreated
             or inadequately treated sewage from vessels, including recreational boats, into the waters of the
             United States. The FWPCA requires the installation of a marine sanitation device (MSD)3  on
             all vessels with installed toilet systems. The standards developed by EPA, in combination with
             regulations promulgated by the Coast Guard for the design, construction, installation and
             operation of MSDs,' govern the implementation of the FWPCA provision. For certain classes
             and sizes of boats (which include the majority of recreational boats), boaters are normally allowed
             to use flow-through marine sanitation devices which only partially treat sewage waste and which
             discharge toxic treatment chemicals along with the effluent. The pollutant impacts of these toxic
             chemicals and partially treated effluent have at one time or another become a concern to many
             states, including the Commonwealth of Virginia.

                   However, under the FWPCA, states may not act unilaterally in prohibiting discharges from
             flow-through MSDs in navigable waters. Section 312 of the Act details the requirements for
             states to apply to the Environmental Protection Agency for the authority to prohibit discharges
             of partially treated boat wastes from MSDs in particular waterbodies, or other state waters, that
             meet EPA requirements. States must, in their application, certify that there is a need for a given
             waterbody to receive greater protection from boater waste than is otherwise afforded through
             existing Federal law and that there are available, within that waterbody, sufficient pump-out
             facilities to handle the job of pumping and processing the effluent from boats moored therein.
             If adequate pump-out facilities are available, the EPA can accept the state's petition to have that
             waterbody, or area of water, designated as a No Discharge Zone (NDZ), and enforcement of that
             designation is then turned over to the state.

                   The pollution problems created by boats with flow-through MSDs has led a number of
             states to designate NDZs. Waterbodies in California, Massachusetts, New Hampshire, Vermont



                   'The FWPCA was adopted by Congress in 1972 and has been amended in 1977,
             1987 and 1990.


                   240 CFR 140.


                   3There are three types of MSDs. A Type III MSD is a holding tank which can
             be pumped out.   Type I MSDs and Type II MSDs are flow-through devices which
             provide some level of treatment to the sewage. Type I MSDs, the less effective
             of the two, treat waste with disinfectant and, typically, with maceration. The
             final discharge must not have a fecal coliform bacteria count of greater than
             1000 per 100 milliliters and may not contain any visible floating solids. Type
             II MSDs use a combination of chemical, biological, electrical or incineration
             methods. Effluent from Type II MSDs may not have a fecal coliform count greater
             than 200 per loo milliliters nor more than 150 milligrams of suspended solids per
             liter. Type II MSDs have greater space and power requirements and usually are
             installed only in larger boats such as passenger and cargo vessels.

                   433 CFR 159.









                and other states have been designated as No Discharge Zones. However, none of these states has
                undergone a complete ecological review and ranking of their streams, rivers and lakes to
                determine which contain the most significant or sensitive aquatic resources and are most in need
                of NDZ designation.

                        In 1976, the Virginia Water Control Board adopted Regulation No. 5 - Control of
                                      5
                Pollution from Boats. The purpose of Regulation No. 5 was to protect shellfish growing areas
                in Virginia waters by establishing a state regulatory framework for the implementation and
                enforcement of designated NDZs where any such designation should later receive EPA approval.

                        In 1979, the Virginia Department of Health and the State Water Control Board, acting on
                behalf of the Commonwealth, jointly petitioned EPA for "No Discharge Certification" for the
                shellfish growing portion of the Rappahannock River. EPA received opposition to the notice of
                this petition appearing in the Federal Register.       Consequently, EPA requested additional
                information and documentation relating to the availability of shoreside pump-out facilities in this
                area. Soon thereafter, EPA and the U.S. Coast Guard began a cost effectiveness study on MSDs.
                After more than two years for this study, the EPA/U.S.C.G. recommendation was for Congress
                to amend-the Clean Water Act to permit rule-making changes to discontinue the present MSD
                regulations in effect for boats under 65 feet in length; and to return control of such regulations
                back to the states. This recommendation was not incorporated into the 1987 nor the 1990
                amendments to the FWPCA; and the Administrator of the EPA did not make a determination on
                the Commonwealth's Rappahannock River NDZ petition.

                        Since that time, certain localities in Virginia have expressed an interest in pursuing NDZ
                designation for waters within their jurisdiction. In the late 1980s, the City of Virginia Beach
                consulted with state officials regarding a possible NDZ petition for Rudy Inlet. Because of the
                potential benefits of NDZ designation in many areas, its relevance to the Chesapeake Bay
                Program and the many levels of government which have an interest in protecting navigation,
                managing water quality and preserving aquatic resources, state agencies in Virginia determined
                in 1991 that an objective review and ranking of the presence and sensitivity of aquatic resources
                in Virginia waters should be conducted and used as a component in any further initiatives
                targeted toward NDZ designation. Although other factors, such as adequacy of pump-out
                facilities, concentration of boating activities and degree of hydrologic flushing in an area would
                play an important role in any final NDZ designation, an ecological prioritization of state waters
                would provide an impartial first step to a confusing issue.

                        A two-part grant was designed and submitted to the National Oceanic and Atmospheric
                Association through Virginia's Coastal Resources Management Program. This grant project was
                designed to provide state agencies with the best (only) available information on the location of
                aquatic resources: the Oil Spill Response Environmentally Sensitive Index maps of the
                Chesapeake Bay. The results of this grant project is discussed below.




                       'A copy of Regulation No. 5 is provided in the Appendix.

                                                                 2










                11.    No Discharge Zone Grant Project Process and Results

                       A.      Phase I of the Grant Project

                       The first phase of the grant project was conducted by staff of the Virginia Institute of
                Marine Science. VIMS staff interviewed NDZ program representatives from other states and put
                together a short review of the these programs. Through their reveiw, VIMS staff found that no
                state had based their NDZ designations on a thorough ecological review and ranking of the
                aquatic resources in state waters (although. Maryland is using that approach for their proposed
                NDZ program). In their report, they concluded:

                       The EPA appears to have finally produced a somewhat detailed guideline for those states
                       wishing to meet the criteria for NDZ status. EPA Region I (Boston, MA) and Region X
                       (Sacramento, CA) seem to be the most up-to-date and organized EPA regions for NDZ
                       designation. However, the process is slow, generally progressing on a case-by-case basis.
                       In general, sewage dumping is prohibited in state water bodies and if a valve exists on an
                       MSD, it is required to be made inoperable so that the only means of disposal is at a
                       pump-out facility. State vessels appear to be exempted from abiding by such NDZ laws.'

                       The major component of the first phase of the grant project was the digitizing by VIMS
                staff of the oil spill response Environmental Sensitivity Map Atlas for the Commonwealth of
                Virginia into digital GIS format. The ESI Atlas was originally produced by VIMS (c.a. 1979)
                under contract with NOAA to provide oil spill response teams with guidance regarding the
                location of envirom-nentally sensitive regions in the Bay. VIMS determined that the ESI Atlas
                is the only comprehensive source of data that would provide the ecological sensitivity information
                necessary for the NDZ development project. However, the final VIMS report notes the following
                limitations to this data base:


                       Several problems which exist with the ESI Atlas should be noted. First, the delineations
                       of the various groups, species and habitats identified were subjective. While experts in
                       the respective fields were consulted, the actual mapping exercise was never verified, and
                       the ability to map with any geographic accuracy was not available at the time. Second,
                       minimum quality assurance and quality control measures were exercised in the original
                       product. In particular, a user will find that data does not flow logically across contiguous
                       topographic boundaries. This suggests that the maps Were never edge-matched to evaluate
                       continuity or correctness in the plotted elements. The data presented should be viewed
                       as a general representation of the possible natural resources which existed at the time the
                       Atlas was published.

                       The data base developed by VIMS included other data relevant to the NDZ project. These



                      -'Chaun, Melissa. 1993. The-Progression of "No Discharge Zone" Status in
                Water Bodies Across the Continental United States.              Virginia Institute of Marine
                Science.


                                                                 3









                other data included marinas, pump-out facilities, public beaches, sumberged aquatic vegetation,
                tidal wetlands and others (listed below). VIMS staff completed their digitizing task and turned
                the data over to the former Council on the Environment (now the Department of Environmental
                Quality) to be used as the baseplate in the considerations for the possible development of an NDZ
                program in Virginia.

                        B.    Phase II of the Grant Project

                        Prior to receiving the data tapes from the Virginia Institute of Marine Science, staff
                responsible for Phase II implementation formed a state agency steering committee and held three
                meetings to discuss the issues surrounding NDZ designation and the process of establishing
                recommendations for NDZ development. The state agencies represented included the Department
                of Health, the Council on the Environment (now DEQ), the Virginia Water Control Board (now
                DEQ), the Chesapeake Bay Local Assistance Department, the Department of Conservation and
                Recreation, the Virginia Marine Resources Commission, and the Virginia Institute of Marine
                Science.


                        A number of state agency representatives generally supported the NDZ concept, and the
                steering committee unanimously supported the proposed process of ranking creeks, rivers and
                embayments based on the sensitivity of their ecological resources and then pursuing management
                strategies, as appropriate. When the final report from the Phase I project was provided by VIMS,
                it described the following data as components of the GIS data base:

                Birds -               Dabbling Ducks, Diving Ducks, Sea Ducks, Geese and Swans, Rails,
                                      Raptors, Wading Birds, Diving Birds, Shore Birds, Gulls and Terns, Other
                                      and Nesting Areas.

                Finfish -             Nursery Fish, Anadromous Fish and Estuarine.

                Amphibians -          Turtles and Alligators.

                Invertebrates -       Oysters, Clams, Crabs, Scallops and Shrimp.

                Vegetation -          Tidal Wetlands and Submerged Aquatic Vegetation.

                Socioeconomic -       Public/Private Marinas, Marinas w/Pump-out Facilities, Archaeological
                                      Sites, Boat Ramps, Parks and Public Beaches, Ecological Areas: Reserves.

                        The steering  committee determined that appropriate criteria, designed to address the
                specific effects of boater sewage effluent, would include the protection of areas and resources
                vulnerable to increased turbidity from nutrient loadings, increased intestinal microorganisms and
                increased toxics. The committee determined that submerged qquatic vegetation, oyster beds and
                clam beds are particularly vulnerable to turbidity impacts; oyster beds, clam beds, public beaches
                and public parks are particularly vulnerable to the effects of intestinal microorganisms; and fish


                                                                4









               nursery areas (particularly anadromous fish), oyster beds, clam beds and state and federal wildlife
               areas and ecological reserves are particularly vulnerable to the impacts of toxic pollutants.

                       In reviewing the VIMS report on the NDZ programs in other states, in was apparent that
               NDZ designations are typically driven by the need to mitigate a problem of concentrated boater
               sewage, caused by very high boater use in an area or the,, lack of flushing in a waterbody.
               Considering these issues as potential factors in the NDZ designation process, the committee
               determined that high boater density and poor flushing should be used as a second tier of
               evaluation after high value resource areas (and areas of public beaches) had been initially
               identified.   It was recognized that quantifying these parameters for individual rivers or
               embayments would require more intensive research and that this process should be conducted
               after the number of sites under consideration had been trimmed by the primary pro          cess of
               ecological ranking. It was also recognized that the factor of boater density would be evaluated
               anyway for a specific area if it were being considered and the ratio of pump-out facilities to
               moored boats were being measured for the purpose of meeting EPA requirements.

                       Unfortunately, the data as presented by VIMS. could not be as readily manipulated to
               present the location of select species on map products of variable boundaries (as had been
               anticipated). This task, which was not included in the original grant proposal and contract, is
               accomplishable. However, the limited staff of the Department of Environmental Quality
               EcoMAPS program had significant high priority commitments at that time and also had to deal
               with the agency merger and equipment move that occurred during the Autumn of 1993. Thus,
               the cornerstone information for this project could not be obtained.

                       An additional meeting was held by the steering committee to discuss options for
               continuing the NDZ initiative. That meeting was attended by representatives of the Department
               of Game and Inland Fisheries who opposed any NDZ effort in the absence of any clear rationale
               for selecting specific waters. Since that time, staff of the Department of Environmental Quality
               have determined that the continuation of the NDZ initiative will require usable, sound, up-to-date
               information on the presence of aquatic resources in order to adequately defend an NDZ initiative
               based on ecological ranking.

                       This information would also prove very useful to other conservation and management
               programs in the Commonwealth. The project being considered by the Office of Ocean Resources
               Conservation and Assessment and the Office of Ocean and Coastal Resource Management to
               update the ESI maps for the entire Chesapeake Bay and to digitize that information into a format
               that would fully meet Virginia's needs in this area. If successful, this initiative could have
               significant potential for furthering NDZ program considerations.

                       As a foundation for any further considerations of NDZ program development, the most
               important continuing process will be education of Virginia's boaters and marina industry. Such
               education efforts are currently being undertaken by the Commonwealth's Natural Resource
               agencies as a component of the larger effort to address marina and boater pollution from a
               number of different approaches. Some of these are described in the following section.


                                                                5









             111.  Associated Activities in Virginia's Program for Managing Boater Pollution

                   The Commonwealth of Virginia is currently involved in a number of other acitivities
             which are designed to further the same goals as an NDZ program and which will maintain
             momentum for these considerations. The two major categories of related activities include: the
             development and upgrade of pump-out facilities throughout the Chesapeake Bay and tributaries;
             and the continuation and enhancement of education initiatives and technical assistance to boaters
             and marina operators.

                   The Virginia Department of Health's Sanitary Regulations for Marinas and Boat Moorings
             manage the marina side of the boater waste problem. The regulations require that boat moorings
             which allow overnight docking and all marinas provide puffip-out facilities and dump stations.
             The regulations establish other sanitary facility requirements, set minimum design criteria, and
             allow exemptions for marinas that can obtain pump-out agreements from nearby marinas having
             adequate pump-out availability and capacity.

                   Annual survey inspections of all marinas covered by these regulations are carried out by
             Virginia Department of Health personnel who will continue to promote and require pump-out
             facilities where needed.


                   Virginia has applied for and received grant funding under the Clean Vessel Act to install
             and refurbish pump-out facilities and dump stations in Virginia's Coastal Zone. This grant
             project will meet, in a timely fashion, a critical need in Virginia's program for managing
             recreational boat pollution. The process for determining exact locations (individual marinas) for
             these facilities will be guided by criteria outlined in the U.S. Fish and Wildlife Service's
             Technical Guidelines for the Clean Vessel Act. These criteria include "Waters designated by the
                                       7
             EPA as No Discharge Areas".

                   One of the most promising new programs for improving education and technical assistance
             to boaters and marina operators is the Lynnhaven Bay Marina Educator and Pump-Out Program,
             co-sponsored by the Department of Environmental Quality and the Department of Health.
             Recognizing that marina regulations alone will not eliminate the problem of overboard disposal
             of boater wastes, these agencies have received a grant from the Environmental Protection Agency,
             Near Coastal Waters Program, to conduct a pilot program in the Lynnhaven Bay of the City of
             Virginia Beach. The grant will finance two portable pump-out machines and four "circuit-rider"
             educators who will provide educational materials and pump-outs to boaters at the 32 marinas
             located in Lynnhaven Bay.




                  'These include: (1) Sheltered waters that are generally poorly flushed
             systems; (2) Waters identified to be of National Significance; (3) Waters of
             significant recreational value; (4) Water supporting designated shellfish harvest
             areas; (5) Nursery areas of indigenous aquatic life; (6) Waters designated by the
             EPA as No-Discharge Areas under the clean Water Act; and (7) Waters that do not
             meet State designated usage.

                                                     6









                   If successful, the Lynnhaven Bay pilot project may be followed by a broader effort to
             expand boater pollution education and assistance. One idea under consideration is to hire a
             "Marina Extension Agent" who would be in charge of coordinating education and technical
             assistance for marinas and boaters in Virginia's Chesapeake Bay region.




             IV.   Further Needs for No Discharge Zone Designation

                   While efforts are underway to update the ESI Map Atlas information, there are other types
             of information necessary to any final NDZ determination which the Department of Health is
             working to obtain. These include surveys of boater usage and more detailed information on the
             status of pump-out faciliffles.

                   The existing files of the Department of Health, in combination with the inspections that
             the Department conducts annually, reflect much of the information necessary to determine the
             sufficiency of pump-out facilities in any coastal area which might be considered for NDZ
             designation. However, enhanced information gathering and processing is needed to evaluate
             where pump-out facilities meet EPA's criteria for availability.

                   The Department of Health data files include the location of all marinas and Other Places
             Where Boats are Moored (Other Places) and whether they have a pump-out facility, dump station
             or agreement with a nearby marina. For each inspection of a marina or Other Place the total
             capacity of the facility, as well as the number of slips or moorings occupied, is determined.

                   However, current Department of Health marina inspections and data files do not include
             the number of boats having Type III MSD holding tanks or portable toilets. Health Department
             staff estimates that different percentages of boats within the various length categories have Type
             III MSD holding tanks or portable toilets' (marina inspections and data files do address the
             length of boats). These estimates need to be verified through research at a sample set of marinas
             in Virginia to provide a multiplier that can be extrapolated to the boat-length data for all marinas
             across the Commonwealth.





             V.    Conclusion


                   The effort that has gone into NDZ designation on the part of state agency representatives
             through this project has laid solid groundwork for any future NDZ initiatives and has led to a


                  8Health Department staff estimate that 1009. of boats 40 feet in length and
             longer have Type III MSDs and that 30% of boats between the lengths of 26 and 39
             feet have Type III MSDs. They estimate that 50% of boats between the lengths of
             26 and 39 feet have portable toilets and that 25% of boats under 26 feet in
             length have portable toilets.

                                                    7









               consistent understanding of what directions and major issues would be associated with such an
               initiative. In particular, the project under consideration by the Office of Ocean Resources
               Conservation and Assessment and the Office of Ocean and Coastal Resource Management to
               update the ESI maps for the entire Chesapeake Bay and to digitize that information into digital
               format could provide a very strong basis for a new undertaking.

                      To the degree that the Commonwealth of Virginia can successfully expand the number
               of pump-out facilities in the Coastal Zone and provide useful educational efforts to boaters and
               marina operators, the stage will be set for consideration and development of NDZ designation and
               implementation.







































                                                               8





      I.






















                                                   Appendix


                                 Virginia Department of Environmental Quality

                                                 Regulation #5 @

                                         Control of Pollution from Boats




























                                                   Appendix


                                 Virginia Department of Environmental Quality

                                                 Regulation #5


                                         Control of Pollution from Boats













                                COMMONWEALTH OF VIRGINIA
                               STATE WATER CONTROL BOARD



            REGULATION NO. 5 - CONTROL OF POLLUTION FROM BOATS


            (Adopted: March 27, 1976 - Amended: January 29-30, 1973 and
            January 3, 1975 - Effective: August 18, 1976.]




            5.01

                 This regulation is established in accordance with Section
            62.1-44.33 of the State Water Control Law (Chapter 3.1 of Title
            62.1 of the Code of Virginia (1950), as amended). For the
            purposes of this regulation, the following definitions apply:

            1.   "The Act" means the Federal Water Pollution Control Act
                 Amendments of 1972 (P. L. 92-500) and standards and
                 regulations promulgated thereunder.

            2.   "Marine sanitation device" includes any equipment for
                 installation onboard a boat or vessel and which is designed
                 to receive, retain, treat, or discharge sewage and any
                                 -such sewage.
     J
                 process to treat

            3.   "Regularly moored, berthed, or,docked" means moored,
                 berthed or docked in or adjacent to shellfish growing
                 waters for 30 or more days in any calendar year.

            4.   "Sewage retention device" means a properly operating
                 holding tank, self-contained toilet, incineration device,
                 or other Coast Guard certified.system designed to prevent
                 any discharge or drainage of human excrement or other
                 wastes therefrom into State waters.

            5.   "Shellfish growing waters" means those State waters.so
                 designated on the maps entitled "Shellfish Growing Waters
                 Subject to the Regulation No. 5 No-Discharge Standard,"
                 dated March 22, 1976 (exhibits 1-6).

            5.02

                 No decayed wood, sawdust, shavings, bark, lime, garbage,
            refuse, ashes, offal, petroleum products, chemicals, or other
            substances shall be directly or indirectly cast, placed, thrown,
            deposited, or discharged from any documanted or undocumented
            boat or vessel into-the navigable or nonnavigable waters within
            this State. However, this provision shall not be construed to


                             Regulation No. 5 - 7/1/88
                                    Page _I of 5










             prevent the normal operation of marine engines, or necessary
             pumping of bilge or ballast water pursuant to Section 5.04.

             5.03

                   No liquid or other wastes resulting from any process of
             industry, manufacture, trade, or business or from the
             development of any natural resource shall be directly or
             indirectly discharged from any documented or undocumented boat
             or vessel into the navigable or nonnavigabl6''waters within the
             State. However, this provision shall not be applicable to the
             harvesting of seafood and fisheries products by commercial
             watermen.


             5.04

                   No bilge or ballast water containing moie than 10 mg/1 of
             petroleum products shall be directly or indirectly discharged
             from any documented or undocumented boat or vessel into the
             navigable or nonnavigable waters within this State. However,
             this provision should not be construed to prevent bilge pumping
             necessary for the safe operation of the boat or vessel.

             5.05

                   Subject to the provisions of Sections 5.06 and 5.08 herein,
             no human excrement shall be directly or indirectly discharged
             from any documented or undocumented boat or vessel into the
             navigable or nonnavigable waters within the State.

             5.06


                   Every boat or vessel, whether documented or undocumented,
             equipped with an installed toilet and which is regularly moored,
             berthed, or docked within the geographic boundaries of those
             State waters now or hereafter designated as -shellfish growing
             areas shall be equipped with a sewage retention device.

                   The foregoing notwithstanding, however, any vessel
             regularly moored, berthed, or docked within the geographic
             boundaries of those State waters now or hereafter designated as
             shellfish growing waters and equipped, on the date of adoption
             of. this regulation, with a marine sanitation device which meets
             the requiremeants of Section 312 of the Act may continue to be
             equipped with said device so long as the device operates
             propearly.

                   Everry boat or vessel, whether documented or undocumented/
             equipped with an installed toilet and uhich is not regularly
             noor ed, berthed, or docked within t  -he ----geographic---bo-undaries of
             those State waters now or hereafter desig-nated as shellfish
             g-rowIng uraters shall be equipped with a marine sanitation device

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                                       Page 2 of 5









             that meets the requirements of Section 312 of the Act. In the
             event such boat or vessel is relocated so that it is regularly
             moored, berthed, or docked within the geographic boundaries of
             those State waters now or hereafter designated as shellfish
             growing waters or if the waters on which such boat or vessel is
             regularly moored, berthed, or docked are redesignated by the
             Board so as to become shellfish growing waters, such boat or
             vessel shall be equipped, within a reasonable time not to exceed
             one year from the date of relocation or the effective date of
             redesignation, with a sewage retention device.

                  The foregoing nothwithstanding, however, those vessels
             equipped with a marine sanitation device meeting the
             requirements of Section 312 of the Act on the date of relocation
             or the effective date of the redesignation as shellfish growing
             waters may continue to be equipped with said devitte so long as
             the device operates properly.

             5.07

                  Human excrement and other wastes from holding tanks and
             self-contained toilets shall be pumped or carried ashore for
             treatment in facilities approved by the appropriate State agency
             or State agencies.

             5.08

                  In the case of boats and vessels hailing from another State
             or having foreign registry, and which are not regularly moored,
             berthed, or docked within the geographic boundaries of those
             State waters now or hereafter designated as shellfish growing
             waters, sewage disposal facilities approved by their respective
             governmental pollution control agency and meeting the
             requirements of Section 312 of the Act shall be acceptable.

             5.09


                  Every owner of a boat or vessel, whether documented or
             undocumented, shall, when so requested in writing by the Board,
             or when making application for the registration of said boat or
             vessel with the Commonwealth of Virginia, Commission of Game and
             Inland Fisheries, answer completely any and all questions
             appearing thereon relating to the requirements of this
             regulation. The Board shall design, and, based upon the
             information furnished by the owner, issue a decal to the owner
             of every boat or vessel which is regularly moored, berthed, or
             docked within the geographic boundaries of those State waters
             now or hereafter designated as shellfish growing waters and
             which is equipped with a sewage retention device or which
             complies with Section 5.06 above. The Board-issued decal shall
             expire three years after the date of issuance or on the date of
             expiration of registration with the Commonwealth of Virginia,

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                                     Page 3 of 5










            Commission of Game and Inland Fisheries, whichever event shall
            first occur. Application for subsequent decals shall be
            submitted prior to the expiration date of the last issued
            decal. The Board-issued decal will be evidence that any boat or
            vessel on which it is properly displayed is in compliance with
            the regulation. The Board-issued decal shall be prominently
            displayed on the exterior of the forward half of the boat or
            vessel.


            5.10

                 Every owner or operator of a marina or other docking
            facility within the State shall notify every boat patron using
            his facilities of this regulation.

            5.11

                 Under Virginia Law this regulation is effective 30 days
            after filing with the Secretary of the Commonwealth. All
            requirements set forth in this regulation shall be complied with
            one year after the date of certification by the Administrator of
            the U. S. Environmental Protection Agency pursuant to Section
            312 (f)(3) of the Act that adequate facilities for the safe and
            sanitary reinoval and treatment of sewage from all vessels are
            reasonably available. Within 15 days of the date of said certi-
            fication the Board shall publish notification of said certifi-
            cation'in at least one newspaper of generalcirculation in the
            localities af f ected.


            5.12

                 Section 62.1-44.33(3) of the State Water Control Law
            provides that violation of this regulation shall, upon
            conviction, be a misdemeanor. Every law enforcement officer of
            this State and its subdivisions shall have the authority to
            enforce this regulation.
















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                                    '-=--ge 4 of 5










                                 Narrative Description of
                "Shellfish Growing Waters Subject to the Regulation No. 5
                                  No-Discharge Standard"



             "Designated shellfish waters" are shown on exhibits 1-6 of the
             hearing file. In summary, these waters are:

             Eastern Shore - All waters around the Eastern Shore, including
             Assateague, Chincoteague, Tangier, and Smith Islands, and the
             barrier islands.

             western Chesapeake Bay and Potomac River (Peninsula, Middle
             Peninsula, and Northern Neck areas) - The Chesapeake Bay and
             tidal portions of its tributaries from Old Point Comfort
             northerly to the Virginia-Maryland state line; the Chesapeake
             Bay and tidal tributaries into the Bay in Virginia and tidal
             tributaries into the Potomac River in Virginia from the state
             line upstream to the Route 301 bridge.

             Lynnhaven - Lynnhaven Bay south of the Lesner Bridge (Route 60),
             including Long Creek, Broad Bay, and Linkhorn Bay.

             James River - The James River and tidal portions of its
             tributaries (including the Hansemond, Pagan, and Warwick
             Rivers), beginning at a line extending from the western entrance
             to Boat Harbor across the northwest corner of the Craney Island
             Disposal Area and along the western boundary of the Disposal
             Area to the south shore, upstream to a line extending from Hog
             Point across the east bank of College Creek.

             York River - The York River and tidal portions of its
             tributaries upstream to the Eltham Bridge (route 33) on the
             Pamunkey River and to the Lord Delaware Bridge (Route 33) on the
             Mattaponi River.

             Rappahannock River - The Rappahannock River and tidal portions
             of its tributaries upstream to the Downing Bridge (Route 360) at
             Ta ppahannock.













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