Jeanne M. Grasso and Dana S. Merkel

Background

In December 2018, the Vessel Incidental Discharge Act (“VIDA”) was signed into law and intended to replace the Environmental Protection Agency’s (“EPA”) 2013 Vessel General Permit (which has been in place for nearly ten years) to bring uniformity, consistency, and certainty to the regulation of incidental discharges from U.S. and foreign-flag vessels. VIDA amended the Clean Water Act and will substantially alter how EPA and the United States Coast Guard (“USCG”) regulate vessel discharges. VIDA required EPA to finalize uniform performance standards for each type of incidental discharge by December 2020, a deadline that the EPA has missed by nearly three years, and requires the USCG to implement EPA’s final standards within two years thereafter.

In October 2020, EPA published a proposed rule titled Vessel Incidental Discharge National Standards of Performance to implement VIDA, but the proposal languished with the change from the Trump Administration to the Biden Administration. In January 2023, more than two years later, EPA announced its plans to issue a Supplemental Notice of Proposed Rulemaking in the Fall of 2023. EPA indicated that the Supplemental Notice was intended to clarify its proposed rule, share ballast water data compiled by the USCG, and propose additional regulatory options.

Litigation by Environmental Groups and Proposed Settlement

EPA’s delay in finalizing its performance standards prompted the Center for Biological Diversity and Friends of the Earth to file a lawsuit in February 2023 to force EPA to finalize its performance standards. Center for Biological Diversity, et al., v. Regan, et al., No. 3:23-cv-535 (N.D. Cal. 2023). The plaintiffs sought a declaration by the court that EPA’s failure to finalize the incidental discharge standards violated the Clean Water Act and asked the court to order EPA to implement final standards within 60 days. The premise of the environmental groups’ complaint was that EPA’s inaction harmed aquatic ecosystems, with the principal allegations focused on ballast water discharges.

In the intervening months, the parties negotiated a settlement and on September 8, 2023, EPA published a Notice of Proposed Consent Decree and request for comments. The Consent Decree requires EPA to finalize its performance standards by September 23, 2024. To keep EPA accountable, EPA is also required to provide updates to the court every three months on the status of the rulemaking. Comments on the Consent Decree are due by October 10.

Next Steps

While the Consent Decree does not address publication of the Supplemental Notice of Proposed Rulemaking, EPA has informed stakeholders that it anticipates publishing it sometime this month. Industry stakeholders are encouraged to closely review and comment on EPA’s supplemental proposal as these performance standards, once implemented by the USCG, will have significant long-term implications for the maritime industry.