Justice is Blind…Once Again

Will Recreational Boaters Disregard Judge Judy?...You Bet!

We all know that commercial ocean-going freighters and tankers fill their ballast tanks when they are light on cargo to stabilize the vessels. And we have also learned that dumping ballast water in Lake Superior, that was pumped aboard in, say, Lagos, Nigeria is precisely how Zebra muscles, lamprey eels and other foreign critters got into the Great Lakes.
Last September, the 9th Circuit Court of Appeals ruled in the case of Northwest Environmental Advocates, et. al. v. U.S. Environmental Protection Agency, et. al., the Environmental Protection Agency (EPA) is required to develop a permitting program for virtually all of the 18 million recreational boats in the United States by September 2008, according to the National Marine Manufacturers Association (NMMA).

The court’s decision means that, if left unfixed by the Congress, the EPA and the fifty-states have to figure out how to issue a special National Pollutant Discharge Elimination Systems (NPDES) permit for each and every recreational boat in the country that discharges everything from engine cooling water to deck runoff,” said Monita Fontaine, Vice President and Senior Counsel of Government Relations for the NMMA.

In its decision, the court decided that a key Environmental Protection Agency (EPA) regulation in place since 1973, which exempted recreational boats from a permitting requirement for large vessels such as cargo ships and cruise liners was not authorized by the Clean Water Act. The EPA issued the exemption regulation because it recognized that it would be unwieldy and unnecessary for either the agency or the each of the fifty-states to issue permits for each and every boat. The agency did not realize the rule making may have technically gone beyond the scope of the Act.

In effect, the Court of Appeals is saying that the EPA didn’t have the right to exercise common sense in its rule making in 1973 to exempt recreational boats.

“Conflating bilge water or deck runoff on a 23-foot recreational day boat with the mega-ton ballast water tanks on a supertanker or cruise ship would be absurd in the extreme,” Fontaine said. “This is why the EPA crafted the exemption for recreational boats in the first place, and why the EPA wants to keep the current system which exempts recreational boaters today.”

The NMMA has filed an Amicus Brief with the Court of Appeals on behalf of America’s boat owners. We’ll keep you posted as this case of unintended consequences plays out. For now, our guess is that the country’s 12 million boat owners will use their common sense.